State ex rel. Terminal Transport Co. v. Earnest, 72--474

• Citation: 262 So.2d 469
• Decision Date: 23 May 1972
• Docket Number: No. 72--474,72--474
• Parties: STATE of Florida ex rel. TERMINAL TRANSPORT CO., Inc., Relator, v. The Honorable James H. EARNEST, as Judge of the Civil Court of Record, In and For Dade County, Florida, Respondent.
• Court: Florida District Court of Appeals

Page 469

262 So.2d 469

STATE of Florida ex rel. TERMINAL TRANSPORT CO., Inc., Relator, v. The Honorable James H. EARNEST, as Judge of the Civil Court of Record, In and For Dade County, Florida, Respondent.

No. 72--474.

District Court of Appeal of Florida, Third District.

May 23, 1972.

Pozen, Pestcoe, Gold & Gold, Miami, for relator.

Paul, Landy, Beiley & Bartel, and Lawrence R. Heller, Miami, for respondent.

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

CARROLL, Judge.

By suggestion in prohibition it was alleged by the defendant in an action in the civil court of record of Dade County (Case No. 71--4894) that the respondent judge on pretrial conference entered an order dismissing the cause on February 15, 1972; that no action was taken by the plaintiff with respect thereto until March 6, 1972, when plaintiff moved for leave to file a second amended complaint; and that the trial court entered an order granting the motion on March 29, 1972. We issued a rule nisi in prohibition. No response was filed thereto, but a brief was filed on behalf of the respondent.

After hearing, we hold that by virtue of Rule 1.420(b) FRCP, 30 F.S.A. the order of dismissal was with prejudice; that with no motion having been filed within the time allowed therefor, for rehearing or reconsideration thereof, the judgment of dismissal became final; and that thereafter the court was without jurisdiction to entertain and act upon the plaintiff's motion for leave to file a second amended complaint, where such motion was not predicated on any ground of mistake or inadvertence of the court in dismissing the cause (with prejudice).

Whereupon, it is ordered that the rule nisi in prohibition heretofore issued by this court is made absolute, and that the relator is entitled to issuance of a writ of prohibition. Issuance of a formal writ will be withheld, upon the assumption of compliance herewith by the trial court without it. The action of this court, and prohibition as herein granted, shall not operate to deprive the trial court of jurisdiction in said cause of any justiciable matter which may be presented to it with reference thereto pursuant to Rule 1.540 FRCP, 31 F.S.A.

It is so ordered.