Elmer A. Yelvington & Son v. Sheridan

• Court: Florida Supreme Court
• Writing for the Court: DREW; ROBERTS; SEBRING
• Citation: Elmer A. Yelvington & Son v. Sheridan, 65 So.2d 44 (Fla. 1953)
• Decision Date: 08 May 1953
• Parties: ELMER A. YELVINGTON & SON, Inc. v. SHERIDAN et ux.

Page 44

65 So.2d 44

ELMER A. YELVINGTON & SON, Inc. v. SHERIDAN et ux.

Supreme Court of Florida, en Banc.

May 8, 1953.

Rehearing Denied June 1, 1953.

Horn & Ossinsky, Daytona Beach, for appellant.

Marian Boros, Daytona Beach, for appellees.

DREW, Justice.

On August 6, 1948, the appellant, plaintiff below, filed its bill of complaint to foreclose a lien against the appellees, defendants below. In due course the cause became at issue and on July 17, 1950, an examiner was appointed to take testimony and on the same day the lower court entered an order extending time for taking testimony to August 5, 1950. On August 4, 1950, pursuant to plaintiff's motion, the time for taking testimony was further extended until August 31, 1950. On September 14, 1950, a stipulation was filed, signed by counsel for plaintiff and defendants extending time for taking the testimony of defendant Joseph S. Sheridan, to October 15, 1950. No further steps were taken in the cause until June 2, 1952, over twenty months thereafter, when plaintiff filed a motion in the cause to extend the time for taking testimony to August 1, 1952.

On July 16, 1952, defendants' attorneys filed a withdrawal and on same say new counsel, pursuant to Section 45.19, F.S.A filed a motion to dismiss the cause for want of prosecution, and the motion was thereafter granted and the cause dismissed on July 22, 1952. Within thirty days plaintiff filed a petition to reinstate the cause, which was heard by the lower court, denied and a final decree of dismissal was thereafter entered. This appeal is from that decree.

The sole question presented for determination is whether, under the facts herein stated, the cause was subject to dismissal under Section 45.19, F.S.A.

In Ivy H. Smith Co. v. Moccia, Fla., 59 So.2d 629, 630, we said:

'The purpose of Section 45.19 was to expedite the course of litigation and keep court dockets as near current as possible.'

This suit had been pending nearly four years when the lower court dismissed it. It had been at issue for nearly two and one-half years and it had been more than two years since the cause was referred to an examiner. Such delay brings criticism to the bench and bar and we can find no reason for it in this record. The plaintiff invoked the processes of the court and it was charged with knowledge that the law required it to prosecute its case with reasonable dispatch, and that if it failed for one year to take some action to make it affirmatively appear the same was being prosecuted, it suffered dismissal thereof. The fact...