Waiswilos v. Feacher, 78-2614

• Court: Florida District Court of Appeals
• Writing for the Court: PER CURIAM; DOWNEY, C. J., and ANSTEAD, J., and WARREN, LAMAR
• Citation: Waiswilos v. Feacher, 370 So.2d 1250 (Fla. App. 1979)
• Decision Date: 23 May 1979
• Docket Number: No. 78-2614,78-2614
• Parties: John WAISWILOS, Individually, and Allstate Insurance Company, Appellants, v. Jean Marie FEACHER, Appellee.

Page 1250

370 So.2d 1250

John WAISWILOS, Individually, and Allstate Insurance Company, Appellants, v. Jean Marie FEACHER, Appellee.

No. 78-2614.

District Court of Appeal of Florida, Fourth District.

May 23, 1979.

Leighton D. Yates, Jr. of Maguire, Voorhis & Wells, Orlando, for appellants.

James T. Golden, Sanford, for appellee.

PER CURIAM.

This is an interlocutory appeal from an order dated November 7, 1978, setting aside an order of dismissal for lack of prosecution dated December 21, 1972.

Appellants moved to dismiss the cause for lack of prosecution, and an order was entered dismissing the cause pursuant to Fla.R.Civ.P. 1.420(e) then in effect. During the year preceding the motion to dismiss however, a pluries summons, without any return thereon, had been filed in the cause without explanation, since long before the filing of the summons the defendants had answered.

At the time of the dismissal no effort was made by the appellee to reinstate the cause within one month under Rule 1.420(e), nor was an appeal taken from the dismissal. Gibbs v. Trudeau, 283 So.2d 889 (Fla. 1st DCA 1973).

Over five years subsequent to the 1972 order of dismissal, appellee served its joint motion to set aside the order dismissing the cause and petition for reinstatement of the cause of action; and on November 7, 1978, the trial court granted the motion "on the grounds that said Order was void in that the evidence on the face of the record indicated some action had been taken within one year prior to filing of the motion by the Defendants," and granted the petition for reinstatement.

The first point on appeal concerns this court's jurisdiction to review the interlocutory appeal, appellant contending that relief having been granted appellee pursuant to Fla.R.Civ.P. 1.540, the appeal was proper, while appellee asserts that Rule 1.540 is not applicable because both the motion to set aside and the petition to reinstate relied on Rule 1.420(e).

The ground of appellee's motion to set aside the order dismissing the cause was that the order was void as a matter of law because of the filing of the pluries summons; the order of the court granted the motion as aforesaid on the ground that the order was void. Rule 1.540(b)(4) provides for relief where the judgment or decree is void. It therefore appears that the order grew out of Rule 1.540 and thus is subject to review under Fla.R.App.P. 9.130(a)(5).

The second point on appeal is the propriety of the order setting aside the order of...