Capers v. Lee
| Decision Date | 19 December 1956 |
| Parties | John CAPERS and Louise Capers, his wife, Appellants, v. Thomas R. LEE, individually and as Attorney-in-Fact for Julia Kenny, a widow, Helen Sims, a widow, Reginald L. Lee, a single man, and Albertha Lee, his wife, Appellees. |
| Court | Florida Supreme Court |
R. P. Terry, Miami, for appellants.
B. C. Fuller, Miami Beach, for appellees.
Appellants were the defendants below. Since only a procedural point is presented for adjudication the facts of the case are not before us, and we will confine ourselves to the procedural history.
Plaintiffs (appellees) filed their complaint in chancery on October 24, 1955. A motion to dismiss was granted and an amended complaint was filed on January 6 1956. A motion to dismiss the amended complaint was granted and on February 9, 1956, the court entered its order dismissing the complaint and allowing thirty days to amend. Plaintiffs failed to amend within the allotted time, and on March 21, 1956 defendants moved for dismissal for failure of plaintiffs to plead. This motion was heard and granted on the same day, and an order was entered thereon, but these proceedings were heard ex parte and no notice of the motion or copy of the order was served upon the plaintiffs.
The order entered on March 21, 1956, dismissed the suit with prejudice.
On May 17, 1956, plaintiffs filed a second amended complaint. On June 13, 1956, plaintiffs moved to vacate the order dismissing the cause. The grounds of this motion were that counsel for the plaintiffs had not been served with a copy of the order of Bebruary 9, 1956, had not been served with a copy of the order of dismissal of March 21, 1956, and had been unaware of the dismissal of the cause when the second amended complaint was filed on May 17, 1956; that because of the involved nature of the litigation counsel for the plaintiffs made extensive research before the filing of the second amended complaint, which required longer than thirty days, and that counsel for the plaintiffs, at the hearing on the merits of the motion to dismiss on February 9, 1956, had received the impression that the time allowed for the filing of the second amended complaint was ninety days.
On June 21, 1956 an order was entered denying the motion to vacate the order dismissing the cause. In this order, however, the court made the following statements:
'The plaintiffs give no excuse for the delay of ninety days before amending other than to state that they thought that at the time of the hearing when the Court fixed the thirty days for amendment, the Court had allowed ninety days rather than thirty days. While this Court is not much impressed with that reason, since it is most unusual, if not unprecedented, to allow ninety days to amend a pleading, I feel, in the interest of justice, the party should be entitled to file their case and have their day in Court, and I don't think opposing parties are particularly prejudiced if they are given full opportunity to defend, however, because of the long delay in this case the motion to vacate the order of dismissal will not be granted as the same is now opposed by defendants.
'Of its own motion, however, the Court hereby amends the order of dismissal of March 21, 1956, which is recorded in Chancery Order Book 1230, page 293; to eliminate the words 'with prejudice' and to provide that said order of dismissal shall be ...
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Edward L. Nezelek, Inc. v. Sunbeam Television Corp.
...against dismissal with prejudice. In support of the argument it is contended that we should apply the logic of the court in Capers v. Lee, 91 So.2d 337 (Fla.1956) and find that Nezelek is not entitled to separate notice on the motion for entry of final judgment for failure to comply with a ......
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Donnell v. Industrial Fire and Cas. Co.
...This was the case in each of the decisions cited in the appellee's brief. Hinchee v. Fisher, 93 So.2d 351 (Fla.1957); Capers v. Lee, 91 So.2d 337 (Fla.1956); Maule Industries, Inc. v. MacDonald Engineering Co., 296 So.2d 512 (Fla. 3d DCA 1974); Gibbs v. Trudeau, 283 So.2d 889 (Fla. 1st DCA ......
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Nenow v. Ceilings & Specialties, Inc.
...If the January 18th order was, in fact, an order of dismissal with leave to amend, the March 28th order would be affirmed. Capers v. Lee, Fla.1956, 91 So.2d 337. However, in view of the facts that the order of January 18th nowhere mentions dismissal of the cause, that it specifically recite......
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Matthews v. Wolvin, 17205.
...which he failed to avail himself of, was a final judgment reviewable only by appeal. The same is true of the later case of Capers v. Lee, Fla.1956, 91 So.2d 337, 339, upon which appellees rely so confidently. Based upon 30 F.S.A., Florida Rules of Civil Procedure, Rule 1.35(b),9 the Supreme......