National Shawmut Bank of Boston v. Woodard
| Decision Date | 25 March 1969 |
| Docket Number | No. 68--757,68--757 |
| Parties | The NATIONAL SHAWMUT BANK OF BOSTON, a United States banking corporation, as Executor under the Last Will and Testament of Russell T. Hamlet, Deceased, Appellant, v. Patricia WOODARD, a single woman, Appellee. |
| Court | Florida District Court of Appeals |
Spence & Spence, Miami, for appellant.
Kurtz & Cooper, Miami, for appellee.
Before CHARLES CARROLL, C.J., and PEARSON and HENDRY, JJ.
On January 16, 1967, appellant filed a complaint in the circuit court of Dade County to establish a resulting trust. The appellee, the defendant below, moved to dismiss for failure to state a cause of action and on other grounds. The motion was granted, with leave to amend within 15 days. An amended complaint was timely filed. On January 9, 1968, a motion of the defendant to dismiss the amended complaint was granted. That order allowed plaintiff to further amend within 15 days and provided that upon failure to so amend 'the cause should stand dismissed, with prejudice'.
Plaintiff did not amend within the time thus allowed, but within that period filed an interlocutory appeal from the last mentioned order. This court affirmed, on April 23, 1968 (209 So.2d 272).
Thereafter the defendant moved for entry of final judgment, pursuant to the terms of the order which had been appealed and affirmed, for the failure of the plaintiff to have amended within 15 days from the date of said order as authorized therein. On June 15, 1968, the trial court granted the motion, and dismissed the cause with prejudice. Plaintiff's subsequent motions to vacate the final judgment of dismissal and for rehearing were denied, and the plaintiff filed notice of appeal from the judgment of dismissal and the subsequent orders.
The question presented for determination is whether the filing by the plaintiff of an interlocutory appeal from the order dismissing the first amended complaint, within the 15-day period allowed by such order to further amend the complaint, operated to toll or suspend the period for amending so as to entitle the plaintiff to file an amended complaint within 15 days after the disposition by the appellate court of the interlocutory appeal.
The appellee contends, as the trial court ruled, that the taking of the interlocutory appeal without supersedeas did not operate to stay the order which had been entered requiring an amendment, if made, to be filed within 15 days. W...
To continue reading
Request your trial
-
Edward L. Nezelek, Inc. v. Sunbeam Television Corp.
...with leave to amend expressly provides that failure to amend will result in dismissal with prejudice. See National Shawmut Bank of Boston v. Woodard, 220 So.2d 636 (Fla. 3d DCA 1969), cert. denied, 225 So.2d 917 (Fla.1969); Stevens v. Metropolitan, Dade County, 164 So.2d 273 (Fla. 3d DCA Se......
-
Dewitt v. Rossi
...Contractors, Inc. v. Singer, 236 So.2d 195 (Fla. 3d DCA), cert. dismissed, 239 So.2d 827 (Fla.1970); National Shawmut Bank of Boston v. Woodard, 220 So.2d 636 (Fla. 3d DCA), cert. denied, 225 So.2d 917 (Fla.1969); Reynolds v. Deep South Sports, Inc., 211 So.2d 37 (Fla. 2d DCA AFFIRMED. W. S......
-
New River Yachting Center, Inc. v. Bacchiocchi
...1970), Miami Auto Auction Inc. v. Friendly Enterprises, Inc., 257 So.2d 69 (Fla. 3rd D.C.A. 1972), National Shawmut Bank of Boston v. Woodard, 220 So.2d 636 (Fla. 3rd D.C.A. 1969). We find that the application of Fla.R.Civ.P. 1.420(b) in this case was solely within the sound discretion of t......
-
D'Best Laundromat, Inc. v. Janis
...236 So.2d 195, 196-97 (Fla. 3d DCA) (sixty-three days late), cert. dismissed, 239 So.2d 827 (Fla.1970); National Shawmut Bank of Boston v. Woodard, 220 So.2d 636 (Fla. 3d DCA) (almost five months late), cert. denied, 225 So.2d 917 (Fla.1969), and (b) the defendant demonstrated no prejudice ......