Railway Exp. Agency v. Hoagland

• Decision Date: 19 December 1952
• Parties: RAILWAY EXP. AGENCY, Inc. v. HOAGLAND.
• Court: Florida Supreme Court

Page 756

62 So.2d 756

RAILWAY EXP. AGENCY, Inc. v. HOAGLAND.

Supreme Court of Florida, en Banc.

Dec. 19, 1952.

Rehearing Denied Feb. 9, 1953.

Ausley, Collins & Truett, Tallahassee, and Mizell & Carmichael, West Palm Beach, for appellant.

J. Luther Drew, West Palm Beach, for appellee.

MATHEWS, Justice.

This is an appeal from a final judgment in a suit filed to recover damages by reason of the damages by fire of some merchandise shipped to the appellee at West Palm Beach, Florida. Because of the conclusion which we have reached it is unnecessary to discuss the evidence or the details of the case except as they relate to Section 45.19 F.S.A.

The suit was filed on February 3, 1950. The answer was filed on March 16, 1950. From the date of the filing of the answer no action was taken by the filing of pleadings, order of the Court, or otherwise, to make it appear that the suit was being prosecuted until the 25th day of September, 1951, on which date the cause was placed on the dismissal docket and an order was entered dismissing said cause under the provisions of Section 45.19 F.S.A.

On the 2nd day of October, 1951, petition was filed to reinstate the cause for the following reasons:

'1. The plaintiff has been sojourning in Europe, and has not been able to contact her counsel and given them sufficient factual information upon which to continue the prosecution of this cause.

'2. That the plaintiff shall return from Europe, and be available for the trial of this cause at the next term of this court.

'3. That it has been necessary, in order to determine the merits of this cause on trial, for a detailed and expensive audit to be made of the alleged damages incurred by the plaintiff, at the hands of the defendant, and this audit is now near completion; however, it has been impossible for this audit to be completed during the absence of the plaintiff from this country.

'4. That counsel has contacted the plaintiff, but because of her sojourn in Europe, it has been impracticable for her to offer her counsel sufficient cooperation in order to bring this case to trial.

'5. That counsel has not been negligent in presenting this case, but this situation has arisen because of the foregoing facts, and by inadvertence.' (Emphasis supplied.)

On the 18th day of October, 1951 the Court entered an order reinstating the casue.

On the 31st day of December, 1951, Jordan Johnson filed his withdrawal as an attorney for the appellee, plaintiff below, and J. Luther Drew filed his appearance as attorney for the appellee, plaintiff below, which was after the orders of dismissal and reinstatement.

In the Complaint filed by the appellee, plaintiff below, on the 3rd day of February, 1950, it is significant to note that she stated:

'By the cooperation of the plaintiff with the defendant, the defendant now has thirty-four (34) pages of inventory of said merchandise, and the plaintiff is now in the process of preparing a complete inventory, and immediately upon its preparation, a copy of said inventory shall be furnished defendant. The time required for the preparation of this inventory, as it requires as high as five (5) units in its breakdown, shall be approximately thirty (30) to sixty (60) days. The defendant has been furnished a cross-section cost value of said lost goods and merchandise.'

When the appellee filed her complaint on February 3, 1950, she stated that it would require from thirty to sixty days to prepare the inventory and at the time she filed her petition for reinstatement on October 2, 1951, the inventory had not yet been prepared and she alleged in a petition that it had been necessary 'for a detailed and extensive audit to be made--and this audit is now nearing completion.' She then alleges that it was impossible for this audit to be completed during her absence.

In the first ground of the petition for reinstatement it is alleged that she has 'not been able to contact her counsel and give them sufficient factual information.' In the fourth ground of the petition she alleges that while she was sojourning in Europe 'that counsel has contacted the plaintiff.' In the fifth ground of the petition for reinstatement the conclusion is expressed that counsel his not been negligent, 'but this situation has arisen because of the foregoing facts, and by inadvertence.'

It is unnecessary to quote Section 45.19 F.S.A. It specifically provides that after a cause has been dismissed, it may be reinstated by petition 'upon good cause shown to the court.'

In the case of Gulf Applicance Distributors, Inc. v. Long, Fla., 53 So.2d 706, the lower Court refused to reinstate a suit which had been previously dismissed under the provisions of Section 45.19 F.S.A. There was a withdrawal of counsel with the permission of the Court and other counsel was substituted. This was done on February 1, 1950. The last pleading filed was a motion to dismiss an amended bill of complaint on August 19, 1949. On October 31, 1950, an order of dismissal was entered because of the failure on the part of the plaintiff-appellant to take affirmative action in the cause since August 19, 1949. In January, 1951 the appellant filed a petition for an order reinstating the cause on the ground that the order substituting counsel for the appellee was an order in the cause affecting the parties thereto. This Court affirmed the order of the Court below and found that there was no abuse of discretion on the part of the lower Court in refusing to reinstate the cause.

In the case of Sudduth Realty Co. v. Wright, Fla., 55 So.2d 189, 190, this Court in an opinion by Mr. Justice Thomas reversed an order of reinstatement...