Opinion
No. 72-1488.
March 27, 1973.
Appeal from the Circuit Court, Dade County, Henry L. Balaban, J.
Rollo Karkeet, in pro. per.
Varon, Stahl Kay, Hollywood, for appellee.
Before BARKDULL, C.J., and PEARSON and CHARLES CARROLL, JJ.
This is an appeal from an order denying defendant's motion to dismiss for failure to prosecute and was made pursuant to Rule 1.420(e), RCP, 30 F.S.A. An examination of the record reveals that this cause was filed in 1962 and finally came on for trial in 1966. A trial was begun in this cause and prior to the completion of plaintiff's case the cause was, upon plaintiff's motion, "returned to the rules" for further discovery. Thereafter, a period of more than eighteen months passed without any action by the plaintiff. This period of inaction was followed by defendant's motion of dismissal for failure to prosecute. The motion should have been granted immediately inasmuch as no good cause in writing was shown why the action should remain pending.
Plaintiff's motion filed after defendant's motion to dismiss pursuant to the rule contained the following confession:
"Counsel will further show unto this Court at the time of the hearing that the delays in bringing this matter to an early conclusion has been brought about by requests of the Plaintiff that he be given an opportunity to determine if the Trust Fund was properly managed."
After the defendant moved pursuant to the rule, the court delayed ruling thereon. This delay of the court in no way affects the right of the defendant to a dismissal. Therefore, the order denying the motion to dismiss for lack of prosecution is reversed and this cause is remanded with directions to enter an order of dismissal dismissing the cause pursuant to Rule 1.420(e), RCP.
Reversed and remanded.
BARKDULL, C.J., dissents.