Ivy H. Smith Co. v. Moccia

• Court: Florida Supreme Court
• Writing for the Court: TERRELL; SEBRING; THOMAS
• Citation: Ivy H. Smith Co. v. Moccia, 59 So.2d 629 (Fla. 1952)
• Decision Date: 13 June 1952
• Parties: IVY H. SMITH CO. v. MOCCIA et al.

Page 629

59 So.2d 629

IVY H. SMITH CO. v. MOCCIA et al.

Supreme Court of Florida, en Banc.

June 13, 1952.

Rehearing Denied July 17, 1952.

John M. McNatt, Adair, Kent, Ashby & McNatt, Jacksonville, for petitioner.

Will O. Murrell and Will O. Murrell, Jr., Jacksonville, for respondent.

TERRELL, Justice.

June 24, 1950, Alma G. Moccia and J. F. Moccia, her husband, instituted a law action against Ivy J. Smith Company, a corporation. Defendants moved to dismiss and stay further proceedings in the cause. As grounds for the motion to stay it was alleged that a prior action had been brought by same parties on the same claim which had resulted in a voluntary non-suit by the plaintiffs, that costs in the sum of $101.90 had accrued and were not paid. September 7, 1950, the court granted the motion to stay pending payment of costs. No further proceeding having been taken in the cause for more than a year, defendants' motion to dismiss was granted September 10, 1951. October 18, 1951, more than a month after the order of dismissal was entered, motion to reinstate the cause was made but was not granted till October 30th. We are confronted with a petition for certiorari to review and quash the latter order.

The point for determination is whether or not under Section 45.19 Florida Statutes 1949, F.S.A. the trial court was authorized to enter the order of October 30, 1951, reinstating the cause.

Section 45.19, Florida Statutes 1949, F.S.A. among other things, provides that when no action has been taken to prosecute a pending action at law or suit in equity for a period of one year it shall be deemed abated, provided that any suit so abated may be reinstated within one month by any party interested on petition showing good cause.

It is clear from the facts stated that nothing was done to prosecute the suit in question for more than one year and that the motion to reinstate was not made within one month after the cause was dismissed. In his order of reinstatement the trial court proceeded on the theory that prosecution of the cause had been staid for non-payment of costs in a prior action and that there was some controversy about the costs which was not ruled on till January 9, 1951. It appears from the record, however, that the costs were taxed May 17, 1950, more than three months prior to the time the stay order was entered and that no action was taken for more than one year. It further appears that objection to the costs in the prior cause was made and...