State Ex Rel. Personal Finance Co. v. Lewis
| Decision Date | 26 September 1939 |
| Citation | 191 So. 295,140 Fla. 86 |
| Court | Florida Supreme Court |
| Parties | STATE ex rel. PERSONAL FINANCE CO. v. LEWIS, Circuit Judge, et al. |
Rehearing Denied Oct. 23, 1939.
Original prohibition proceeding by the State of Florida, on the relation of the Personal Finance Company, a corporation against Miles W. Lewis, Judge of the Circuit Court in and for the Fourth Judicial Circuit, and Alice M. Bunting. On motion to quash writ of prohibition.
Motion to quash granted.
Albion W. Knight and L. K. Walrath, both of Jacksonville, for relator.
Evan T Evans, of Jacksonville, for respondents.
Alice M. Bunting, joined by her husband, Carlos A. Bunting instituted a common law action against Personal Finance Company in June 1930. In July, 1931, the cause stood on the docket in the shape of a demurrer to plaintiff's amended declaration. No further steps were taken until September 3 1934, at which time plaintiff's counsel filed a praecipe for dismissal which appears not to have been entered or docketed. On July 23, 1935, a deputy in the Clerk's office entered an order of dismissal nunc pro tunc as of September 3, 1934.
On July 25, 1935, Alice M. Bunting moved to withdraw the praecipe for dismissal and to reopen the cause on the ground that it was filed without her authority and against her wishes. In March, 1936, the Circuit Judge entered an order striking the praecipe and declaring the nunc pro tunc order of dismissal null and void. Rehearing was denied in May, 1938. The pleadings were noted for argument and relator filed his suggestion for prohibition in this Court. A rule nisi was issued and the cause now stands for disposition on the motion to quash.
Relator contends that the motion to quash should be denied because the was to all intents and purposes dismissed when counsel for respondent on September 3, 1934, filed a praecipe for dismissal and that two terms of the Court having intervened, the Circuit Judge was without power to reinstate it.
We do not think there is any merit to this contention. It is quite true that in matters of procedure or practice which affect solely the conduct of a cause, an attorney may bind his client but this is not the rule as affecting the merits. The question of dismissal is one that goes to the merits and cannot be effectively done without the consent of the client.
In the case at bar, relator asserts that the praecipe and the nunc pro...
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