Opinion
March 7, 1952.
Appeal from the Circuit Court for Volusia County, P.B. Revels, J.
Howell Howell, Jacksonville, for appellant.
Raymond Wilson, Daytona Beach, for appellee.
This is an appeal from an order of the Circuit Court dismissing a case on the motion of the defendant under the provisions of Section 45.19, Florida Statutes, 1941, F.S.A. After eleven and one-half years the Court made an order of dismissal.
The one question presented is: "Should this cause have been dismissed for non-prosecution under Section 45.19, Florida Statutes, 1941, F.S.A., when, after 11 1/2 years of inactivity without good cause shown, the loss of the Court file by counsel for the plaintiff, and the death of counsel for the defendant, but before any order of dismissal was entered and seven days before a motion therefor made, the plaintiff served notice of hearing of all undisposed of pleadings on the defendant?"
The record in this case shows the following:
"1. That on December 19, 1939, a declaration was filed by Joseph Ginsberg, Esquire, in behalf of the Plaintiff, such declaration being on a foreign judgment rendered in the State of Georgia in 1936 in the amount of $22,969.41.
"2. That on December 29, 1939, an appearance was filed by the Defendant, through his attorney, Walter Walker, Esquire.
"3. That on January 5, 1940, a demurrer was filed by the Defendant through the said Walter Walker, Esquire.
"4. That on March 8, 1940, the original Court file in this cause was borrowed from the Clerk by the attorney for the Plaintiff, said Joseph Ginsberg, Esquire, and said original Court file was subsequently lost or misplaced so that none of the original pleadings are available.
"5. That on or about July 1, 1950, Walter Walker, Esquire, attorney for the Defendant died, and his office file on the cause cannot be found.
"6. That on September 1, 1951, a notice of hearing on all undisposed of pleadings was filed by the Plaintiff, through Howell and Howell, attorneys; said notice showing that said hearing was set for September 11, 1951.
"7. That on September 8, 1951, Defendant served notice on Howell and Howell, through Raymond and Wilson, Esquires, that on September 11, 1951, it would call up for disposition Defendant's motion to dismiss for non-prosecution, a copy of said motion having been enclosed with said notice.
"8. That on September 10, 1951, an appearance of counsel was filed in behalf of Howell and Howell, as attorneys of Record, for the Plaintiff.
"9. That on September 11, 1951, an Order was entered by Judge Revels dismissing this cause for non-prosecution."
The Order dismissing the cause was as follows:
"This cause came on for hearing on this date upon the defendant's motion to dismiss for non-prosecution after due notice, both of the parties being present by counsel, who fully argued the matters involved; and it appearing that this cause was filed on December 19, 1939; that the last pleading filed therein was the defendant's demurrer filed on January 5, 1940; that nothing further transpired in said cause until plaintiff's notice of hearing was filed on September 1, 1951; that the court file borrowed from the Clerk of this Court by the then attorney for the plaintiff has been lost, and the Court being fully advised, it is upon consideration thereof
"Ordered and Adjudged that said motion ought to be and it is hereby granted and said cause is hereby dismissed for non-prosecution as provided in Section 45.19, Florida Statutes, 1941.
"Done, Ordered and Adjudged in Circuit Court Chambers at Daytona Beach, Volusia County, Florida, this 11th day of September, A.D., 1951."
The appeal was premature as contended in the brief for the appellee. The order entered by the Circuit Judge does not appear to be a final judgment from which an appeal can be prosecuted.
After the entry of the order of dismissal the Circuit Judge still had jurisdiction of the matter for a period of six months and the appellant had six months under the Statute in question within which to file a petition showing good cause to set aside the order of dismissal and reinstate the cause. The appellant failed to pursue the remedy provided by the Statute and instead filed its appeal from the order of dismissal. The appeal was premature.
If the appellant was aggrieved by the order of dismissal it should have filed a petition as provided by the Statute within six months from the date of the order of dismissal showing good cause why the case should have been reinstated. Should the Circuit Judge deny such petition and the appellant should be dissatisfied, a final judgment should be entered and it would then be in order for the appellant to file notice of appeal. See Hancock v. Hancock, 128 Fla. 684, 175 So. 734; Harrington v. Bowman, 106 Fla. 86, 143 So. 651; Scarlett v. Frederick, 147 Fla. 407, 3 So.2d 165; Dudemaine et al. v. Shaw et al., 153 Fla. 899, 16 So.2d 114.
Affirmed.
SEBRING, C.J., and CHAPMAN and ROBERTS, JJ., concur.