Rosenfeld v. Glickstein
| Decision Date | 08 June 1967 |
| Docket Number | No. I-50,I-50 |
| Citation | 200 So.2d 242 |
| Parties | Sam ROSENFELD, Appellant, v. I. D. GLICKSTEIN, Appellee. |
| Court | Florida District Court of Appeals |
J. B. Hodges, Lake City, for appellant.
Goldman, Presser & Lewis, Jacksonville, for appellee.
The plaintiff appeals from an order dismissing this cause of action for failure to prosecute. Said order of dismissal was entered upon motion of the defendant, appellee herein.
At the time of the defendant's motion for the entry of the dismissal order here in question, there was pending before the trial court a notice of taking depositions filed by the appellant, which notice was filed within one year from the filing of an order by the court in this case. The appellee contends that the use of discovery proceedings does not constitute action taken in the prosecution of a case within the meaning and intent of Section 45.19(1), Florida Statutes, 1965, F.S.A.; and, therefore, his motion to dismiss for failure to prosecute was properly granted.
Appellant, on the other hand, contends that the trial court misconceived the effect of discovery proceedings insofar as same relates to the prosecution of an action within the meaning of Section 45.19(1), Florida Statutes, 1965, F.S.A., which states in material part:
'All actions * * * 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, * * *.'
Appellee directs the court's attention to a New Mexico decision, Morris v. Fitzgerald, 73 N.M. 56, 385 P.2d 574 (1963), construing a materially similar statute of that jurisdiction. The holding in Morris supra, was that the taking of depositions was not prosecution of a cause within the meaning of that state's abatement of action statute. The rule in Florida, however, seems to be otherwise. In Reilly v. Fuss, 170 So.2d 475 (Fla.App.2d, 1964), the court affirmed a dismissal under Section 45.19(1), Florida Statutes Annotated, stating that a Dehors the record search for a witness did not constitute 'activity' precluding abatement under the subject statute. In so ruling, our sister court stated, 'It is notable that the plaintiff did not employ discovery procedures * * *.'
Thus, inferentially at least, Reilly had the effect of inducing the bar of this State into justifiable reliance on the proposition that use of discovery proceedings...
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