Waiswilos v. Feacher, 78-2614
| Decision Date | 23 May 1979 |
| Docket Number | No. 78-2614,78-2614 |
| Citation | 370 So.2d 1250 |
| Parties | John WAISWILOS, Individually, and Allstate Insurance Company, Appellants, v. Jean Marie FEACHER, Appellee. |
| Court | Florida District Court of Appeals |
Leighton D. Yates, Jr. of Maguire, Voorhis & Wells, Orlando, for appellants.
James T. Golden, Sanford, for appellee.
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...
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Marsh & McLennan, Inc. v. Aerolineas Nacionales Del Ecuador
...certiorari review.") and id. (Upchurch, J., dissenting) (arguing that certiorari should have been granted). Cf. Waiswilos v. Feacher, 370 So.2d 1250 (Fla. 4th DCA 1979) (appeal under Rule 9.130(a)(5) is proper from setting aside of dismissal for lack of prosecution six years after original ......
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Palmer v. Palmer, 85-875
...(Fla. 5th DCA 1982), pet. denied, 434 So.2d 887 (Fla.1983). Girteit v. Girteit, 400 So.2d 192 (Fla. 3d DCA 1981); Waiswilos v. Feacher, 370 So.2d 1250 (Fla. 4th DCA 1979); Varnes v. Kirk, 251 So.2d 324 (Fla. 1st DCA The motion did not allege, nor do the facts support, the conclusion that th......
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R & A Trucking, Inc. v. General Host Corp.
...Rule of Civil Procedure 1.540 and, moreover, under any potentially applicable provisions of that rule, was untimely. Waiswilos v. Feacher, 370 So.2d 1250 (Fla. 4th DCA 1979); Brown v. Morella, 371 So.2d 571 (Fla. 4th DCA 1979) (Anstead, J., dissenting). Even under former Rule 1.420(e), inap......
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Allstate Ins. Co. v. Bucelo, 94-1977
...of this action was done pursuant to Florida Rule of Civil Procedure 1.540. Fla.R.App.P. 9.130(a)(5); Waiswilos v. Feacher, 370 So.2d 1250, 1251 (Fla. 4th DCA 1979). The trial court's reinstatement of this action based upon its finding that the parties had been engaging in continuous telepho......