Fort Walton Lumber & Supply Co. v. Parish, D-239

• Court: Florida District Court of Appeals
• Writing for the Court: CARROLL, DONALD K.; RAWLS; STURGIS; STURGIS
• Citation: Fort Walton Lumber & Supply Co. v. Parish, 142 So.2d 346 (Fla. App. 1962)
• Decision Date: 12 June 1962
• Docket Number: No. D-239,D-239
• Parties: FORT WALTON LUMBER & SUPPLY COMPANY, Appellant, v. J. R. PARISH, Jr., and D. P. Simmons d/b/a Parish Plumbing and Appliance, Inc., Appellee. . First District

Page 346

142 So.2d 346

FORT WALTON LUMBER & SUPPLY COMPANY, Appellant, v. J. R. PARISH, Jr., and D. P. Simmons d/b/a Parish Plumbing and Appliance, Inc., Appellee.

No. D-239.

District Court of Appeal of Florida. First District.

June 12, 1962.

James W. Middleton, Ft. Walton Beach, for appellant.

William Dean Barrow, Crestview, for appellee.

CARROLL, DONALD K., Chief Judge.

Two of the defendants in a foreclosure suit have taken this interlocutory appeal from an order entered by the Circuit Court for Okaloosa County reinstating the cause after it had been dismissed for want of prosecution.

In this appeal we are called upon to construe Section 45.19(1), Florida Statutes, F.S.A., which provides:

'45.19 Abatement; actions or suits pending; failure to prosecute

'(1) All actions at law or suits in equity pending in the several courts of the state, and instituted subsequent to 12 o'clock noon, October 1, 1947, in which there shall not affirmatively appear from some action taken by filing of pleadings, order of court, or otherwise, that the same is being prosecuted, for a period of one (1) year, shall be deemed abated for want of prosecution and the same shall be dismissed by the court having jurisdiction of the cause, upon its own motion or upon motion of any person interested, whether a party to the action or suit or not, with notice to opposing counsel, provided that actions or suits dismissed under the provisions hereof may be reinstated by petition upon good cause shown to the court filed by any party in interest within one (1) month after such order of dismissal.'

The timetable of events pertinent to our present consideration is as follows:

The plaintiffs filed this suit on November 23, 1960, to foreclose certain mechanics liens against a large number of lots and defendants, including the two appellants. It appears from the record of the cause that process was issued and delivered to the plaintiffs' counsel but no service of process has ever been effected. On November 28, 1961, the defendants filed a motion to dismiss the cause under the above-quoted statute on the ground that 'no action whatsoever has been taken in connection with the said complaint, no process having been issued or served therein.' At a hearing on December 8, 1961, the court dismissed the cause. On the same date the plaintiffs filed a motion to reinstate the cause, alleging as good cause: that settlement negotiations had continued until March, 1961 and that the law partnership representing the plaintiffs was dissolved on January 1, 1961, and since March, 1961, 'confusion has reigned' as to which partner was responsible for the litigation.

The District Court of Appeal, Second District of Florida, in Davant v. Coachman Properties, Inc., 118 So.2d 844 (Fla.App.1960) held that the said statutory period of one year is 'a liberal and reasonable period within which litigants may readjust themselves to almost any kind of calamity.' In that case the court further held that in that statute the 'legislature contemplated such misfortunes as illness,' but we do not think the legislature contemplated such a misfortune as the confusion reigning when a law partnership is dissolved, to which situation the clients could have readjusted themselves by the employment of other counsel when the partnership was dissolved.

The appellee has filed no brief in this appeal. In the appellant's brief reliance is placed upon the decision of the Supreme Court of Florida in Atlantic Coast Line Railroad Company v. Hill, 76 So.2d 861 (1955), in which the Supreme Court held with reference to Section 45.19:

'* * * The fact that one of the parties to the litigation discussed a settlement and promised to submit a proposal or figures within a week which was not done does not constitute the 'good cause' contemplated and required by the statute. Gulf Appliance Distributors, Inc., v. Long, Fla., 53 So.2d 706; Sudduth Realty Co. v. Wright, Fla., 55 So.2d 189; Railway Express Agency v. Hoagland, Fla., 62 So.2d 756; Yelvington & Son, Inc., v. Sheridan, Fla., 65 So.2d 44, and Early v. Sarasota-Fruitville Drainage District, Fla., 67 So.2d 441.'

The facts of that case, as revealed in this quotation, can be differentiated from the facts alleged in the instant case in that here 'the plaintiffs and the defendants' allegedly engaged in the settlement negotiations. The motion for reinstatement alleges that 'the plaintiffs and defendants have been effectively and actively engaged in negotiating settlement' of this cause of action 'with plaintiff actively serving in the capacity of Creditor-Trustee in...