Maule Industries, Inc. v. MacDonald Engineering Co., 73-1499

• Decision Date: 18 June 1974
• Docket Number: No. 73-1499,73-1499
• Citation: 296 So.2d 512
• Parties: MAULE INDUSTRIES, INC., a Florida corporation, Appellant, v. MacDONALD ENGINEERING COMPANY, an Illinois corporation, and American Mutual Liability Insurance Company, a Massachusetts corporation, Appellees.
• Court: Florida District Court of Appeals

Page 512

296 So.2d 512

MAULE INDUSTRIES, INC., a Florida corporation, Appellant, v. MacDONALD ENGINEERING COMPANY, an Illinois corporation, and American Mutual Liability Insurance Company, a Massachusetts corporation, Appellees.

No. 73-1499.

District Court of Appeal of Florida, Third District.

June 18, 1974.

Papy, Levy, Carruthers & Poole, Coral Gables, and James S. Usich, Miami Beach, for appellant.

Spencer & Taylor, Miami, for appellees.

Before BARKDULL, C. J., and PEARSON and CARROLL, JJ.

PER CURIAM.

In September, 1972, the trial judge dismissed a third party complaint filed by Maule Industries, the original defendant in a negligence action. Thereafter in June of 1973, without leave of court, it filed an amended third party complaint which was met with a motion to dismiss. The trial court dismissed same and this appeal followed. We affirm.

The ruling of September, 1972 was a final adjudication of the merits of the third party complaint; there was no provision for leave to amend, none was requested, and the amendment filed without permission in June of 1973 was out of order and the trial court was correct in dismissing same. Capers v. Lee, Fla.1956, 91 So.2d 337; Hinchee v. Fisher, Fla.1957, 93 So.2d 351; Hammac v. Windham, Fla.App.1960, 119 So.2d 822; Rule 1.420 RCP, 30 F.S.A. page 462 and Committee note (b), page 465. To do otherwise would permit the parties at their option, without leave of the trial court, to keep the cause from coming at issue.

Therefore, the order under review be and the same is hereby affirmed.

Affirmed.