Davant v. Coachman Properties, Inc., 1599
| Decision Date | 16 March 1960 |
| Docket Number | No. 1599,1599 |
| Citation | 118 So.2d 844 |
| Parties | J. C. DAVANT, Petitioner, v. COACHMAN PROPERTIES, INC., a Florida corporation, Respondent. |
| Court | Florida District Court of Appeals |
S. E. Simmons, and H. Rex Owen, St. Petersburg, for petitioner.
James Whitehurst, Brooksville, and Leon Whitehurst, Jr., Clearwater, for respondent.
By petition for writ of certiorari review is requested of an order reinstating a cause dismissed for want of prosecution pursuant to F.S. § 45.19, F.S.A.
The case being at issue upon complaint and answer, it was set for trial during the week of July 7, 1958. Before this date arrived defendant was permitted to amend his third defense, to which the plaintiff filed a motion to strike and in addition filed a motion for leave to reply to the second defense, accompanying the motions with a notice for hearing on June 24, 1958. In the meantime the court entered an order directing a pretrial conference for June 26, 1958.
By letters to opposing counsel and to the court, defendant's attorney advised that the hearing dates of June 24th and 26th conflicted with a prior engagement for trial, the first of these letters requesting a change of the hearing date and the second suggesting that the case be continued for the term or until a later date and removed from the trial calendar, the defendant agreeing therein, as evidence of good faith, after the case was at issue to try the same before the court without a jury. On July 7, 1958, the case was passed.
Except for the filing of certain discovery depositions on July 22, 1958, no further action occurred until July 23, 1959, on which date defendant moved under the statute that the case be dismissed for want of prosecution. This motion was granted.
Within the time permitted by the statute plaintiff filed its petition for reinstatement, assigning as good cause therefor (1) mental incompetency of one of counsel for plaintiff; (2) sickness and death of Jessie Candler Coachman; (3) announcement by the trial judge of his retirement prior to the next trial term of court; (4) defendant's written suggestion to the court that the case set for trial the week of July 7, 1958, be continued for the term and removed from the trial calendar, coupled with the request to change the hearing date; and (5) that the statute of limitations, if held applicable, would diminish plaintiff's claim upon the refiling of the cause. In its order the court did not indicate upon which ground the order of reinstatement was entered.
The single question presented is whether the petition for reinstatement showed good cause, it being our conclusion that it did not.
Mental incompetence, tragic though it may be, is in essence a form of sickness. Illness of a temporary nature extending over a period of weeks ordinarily presents no problem, for upon recovery ample time still remains within which to avoid the impact of the statute, but where it becomes apparent that the affliction will be of protracted duration or perhaps even permanent in nature, the time eventually comes when something must be done. The legislature contemplated such misfortunes as illness, but in the act drew the line at one year, a liberal and reasonable period within which litigants may...
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...149, 188 P.2d 429, 11 A.L.R.2d 350, that jurisdiction of the subject matter can be questioned on appeal. Davant v. Coachman Properties, 118 So.2d 844, 80 A.L.R.2d 1396 (Fla.App.1960), deals with a statute utterly dissimilar to our own. The earlier California cases of Henderson v. Palmer Uni......
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