Sudduth Realty Co. v. Wright

• Court: Florida Supreme Court
• Writing for the Court: THOMAS; SEBRING
• Citation: Sudduth Realty Co. v. Wright, 55 So.2d 189 (Fla. 1951)
• Decision Date: 27 November 1951
• Parties: SUDDUTH REALTY CO., Inc. v. WRIGHT.

Page 189

55 So.2d 189

SUDDUTH REALTY CO., Inc. v. WRIGHT.

Supreme Court of Florida, Special Division A.

Nov. 27, 1951.

Archie Clement, Tarpon Springs, for petitioner.

Stuart B. Warren, St. Petersburg, for respondent.

THOMAS, Justice.

A bill of complaint was filed by the respondent against the petitioner and a decree pro confesso was seasonably entered. A motion to set aside the decree pro confesso was filed but never decided.

Afterward the defendant, petitioner now, filed an answer, evidently without leave of court; then the plaintiff, respondent here, applied for leave to amend the bill and at the same time filed a proposed amendment, without the court's having ruled on the application. Soon afterward the defendant formally objected to the filing of the amendment to the pleading, but the court did not rule upon the objections.

There the matter rested for about seven years when the chancellor, of his own motion, dismissed the cause for lack of prosecution. Section 45.19, Florida Statutes 1941, and F.S.A.

Five months later the plaintiff filed a petition for reinstatement introducing into the record for the first time the intelligence that at a hearing on some date not stated before Honorable T. Frank Hobson, then chancellor, on the objections to amending the bill an oral request was made to transfer the cause to the law side of the court and that no such order of transfer was ever entered, or ruling made on the application for leave to amend. It was further represented that some time or other afterward the defendant had promised to furnish the plaintiff certain 'data in regard to some disposition of this case,' awaiting which the plaintiff had deferred prosecution, and by relying on which he had been 'lulled into a sense of security,' and so on. Upon entertaining this petition the chancellor, successor of Judge Hobson, observed that the motions for permission to amend the bill and to transfer the cause to the law side of the court had been submitted to Judge Hobson who had failed to rule upon 'that Motion,' and the chancellor announced that 'had the Court known that it was in the bosom of the Court, the case would not have been dismissed.' (Italics supplied.) This was 2 August, 1951, more than three years after Judge Hobson had become a member of the Supreme Court.

We think the order reinstating the cause was improperly entered. The obvious purpose of the statute is to speed decision of disputes by penalizing those who would allow their litigation to become stagnant. This very matter lay dormant for many years during which the plaintiff was charged with notice that the period fixed in the law was inexorably expiring. Yet it was only after the chancellor dismissed the cause that the plaintiff was galvanized into action. There is little need to detail all the things that might have been done to perfect the pleadings and effectuate a trial. We will go, instead, direct to the 'good cause' the plaintiff was bound to show in order to be rewarded with an order of reinstatement. It consisted of two aspects, the unfulfilled promise of the defendant to furnish certain information and the failure of the judge to rule on the motion to transfer; also, perhaps, the application for leave to amend.

The first of these is lacking in merit. The only record of any such promise or undertaking on the part of the defendant was the statement in the petition for...