Early v. Sarasota-Fruitville Drainage Dist., SARASOTA-FRUITVILLE

• Court: Florida Supreme Court
• Writing for the Court: THOMAS; ROBERTS
• Citation: Early v. Sarasota-Fruitville Drainage Dist., 67 So.2d 441 (Fla. 1953)
• Decision Date: 21 July 1953
• Docket Number: SARASOTA-FRUITVILLE
• Parties: EARLY et al. v.DRAINAGE DIST.

Page 441

67 So.2d 441

EARLY et al. v. SARASOTA-FRUITVILLE DRAINAGE DIST.

Supreme Court of Florida, Division B.

July 21, 1953.

Rehearing Denied Oct. 20, 1953.

Early & Early, Sarasota, for petitioners.

C. L. McKaig and Dexter & Conlee, Sarasota, for respondent.

THOMAS, Justice.

The respondent filed a bill of complaint 29 March 1933, to foreclose certain tax liens. Four years later the chancellor dismissed the cause so far as it affected a tract of land which had been erroneously included with those properties on which liens were alleged to exist.

According to the record no paper of any sort was thereafter filed in the case until 2 March 1953, when the attorney for the respondent filed a motion for 'an order prescribing the form of notice to be given in this cause, the number of time [sic] which the same shall be published, the dates on which the same shall be published, the newspaper in which the same shall be published, and the date on which or period within which interested parties shall be required to appear and show cause, together with any provisions with respect to the notice or notice to be given in connection with this suit which this Honorable Court may require.'

Meanwhile counsel for the petitioners had sought and obtained an order dismissing the cause for want of prosecution. Although this order was rendered 24 February 1953 it was not entered until 3 March 1953.

A few days afterward the respondent filed a petition to reinstate the suit and this was granted without prejudice to the rights of the petitioners to renew their motion to dismiss should there be failure on the part of the respondent to prosecute the cause. This is the order we are asked to quash.

The decision must derive from an application of the provisions of Sec. 45.19, Florida Statutes 1941, and F.S.A., originally Chapter 14554, Laws of Florida, Acts of the Extraordinary Session of 1929, to the circumstances of this case.

It cannot be doubted that the suit had been pending without prosecution for wellnigh twenty years when the advice of the court was sought on the manner of service to be employed. Counsel for respondent concedes that the suit was pending from the day the bill was filed. Even if the procedure to eliminate certain lands could be considered a step in furtherance of the cause, instead of the very opposite inasmuch as it amounted to a discontinuance of the case so far as the lands affected were concerned, the suit was dormant thereafter for a period many times that named in the statute.

So the order of 24 February 1953, effective 3 March 1953, dismissing the suit was quite proper unless the motion with reference to service of process filed between the rendition and recordation of the order of dismissal could be said to have defeated the effort to dismiss. It is true that the order became effective on its entry the day after the motion for advice about the form and manner of service was filed. But we do not think this motion could be considered an 'action'...