Opinion
April 8, 1952.
Appeal from the Circuit Court for Palm Beach County, Joseph S. White, J.
Newman T. Miller, Wareing T. Miller, Robert S. Hewitt and C.H. Earnest, all of West Palm Beach, for appellant.
Robert H. Anderson, Miami, Don G. Nicholson, West Palm Beach, Russell L. Frink, Jacksonville, William S. Frates and Loftin, Anderson, Scott, McCarthy Preston, all of Miami, for appellees.
On May 15, 1948, appellees brought suit against appellant for the recovery of damages arising out of a collision between one of their trains and appellant's truck and trailer on the previous May 6 at a railroad crossing in West Palm Beach.
On August 6, 1948, appellant countered with a suit against appellees seeking recovery of damages to its truck and trailer arising from the same collision.
On October 4, 1948, appellees, presumably recognizing the applicability of the compulsory counterclaim statute, Section 52.11, sub-paragraph 1, F.S.A., filed their plea of the general issue, incorporating therein a request that it operate also as a replication to appellant's declaration as a counterclaim "when this cause is consolidated with Common Law Action No. 10906" (Appellees' initial action against appellant).
Concurrently with the filing of their plea appellees filed their motion to consolidate the cases on the ground that the subject matter was common to both, and requesting that appellant's declaration be treated as a counterclaim and their pleas as a replication thereto as such.
No action appears to have been taken on the motion to consolidate until July 25, 1949, when an order was entered denying the motion insofar as it sought the treatment of appellant's declaration as a counterclaim and appellees' pleas as a replication thereto, but granting a consolidation "Solely for the purpose of trial with separate verdicts and judgments thereon".
On August 24, 1951, appellees filed their motion to dismiss appellant's case on the ground that no action by the filing of pleadings, order of court, or otherwise, had been taken therein for more than one year, the last pleading having been filed on July 25, 1949 — a date according to appellees' brief, from which appellant's case had been ready for trial, and which was also the date of the order on the motion to consolidate.
On August 23rd (sic) 1951, the motion to dismiss was granted. On the following August 30 appellant filed its petition for reinstatement and on the following day filed an amendment thereto. The petition was denied on September 11, 1951, for the reasons, as stated, that the showing of facts was insufficient and that the "order of consolidation did not merge the two actions into a single suit but had the effect of preserving their separate existence". Petition for rehearing was filed on September 14, 1951 and denied October 8, 1951, the court in his order reciting the history of the litigation substantially as we have undertaken to do and observing that no predicate for such a situation was found and that the question "had its difficulties".
It is from the order denying the petition for reinstatement, and the order denying a rehearing, coupled with the original order of dismissal that this appeal was taken.
It is our view that for all practical purposes in the final disposition in the circuit court the order on the motion to consolidate had the effect of destroying the identity of appellant's case as an independent action for the purposes specified — the purposes of trial — and that the requirement for separate verdicts and judgments affected the mechanics of the proceeding only, so that, so long as the order of consolidation remained in force neither of the cases could have been tried separately from the other. Appellant who had brought its case to an issue and ready for trial should not have been penalized for the failure of appellees, the aggressors in bringing on the litigation, to proceed with their case in order that both might be disposed of before the same jury in compliance with the order of consolidation procured by them. Appellees' failure to diligently prosecute its case, whether intentional or inadvertent, was reasonably well calculated to lull appellant into a state of inactivity in the belief that it would eventually, when appellees had brought their case to an issue, have its day in court. It is possible also that their failure to press for a trial was prompted by a sense of courtesy and in a spirit of accommodation. The further fact that during the course of the litigation the member of the firm who had handled appellant's case passed away is not without weight in our conclusions.
Newton v. Mitchell, 42 So.2d 53, decided subsequently to the ruling on the motion to consolidate but prior to the order denying reinstatement seems ample authority for the unqualified consolidation of cases such as these under the so-called compulsory counterclaim statute. None of the cases cited in the briefs involved a situation as is here presented. As the able Circuit Judge indicated, there is no precedent in the judicial annals of this state to which we may point as a guide.
The order denying the petition to reinstate is reversed.
SEBRING, C.J., and CHAPMAN and MATHEWS, JJ., concur.