Opinion
Nos. 61-429, 61-442, 61-445.
February 1, 1962. Rehearing Denied February 22, 1962.
Appeal from the Circuit Court for Dade County, Robert H. Anderson, J.
Wicker, Smith, Blomqvist, Hinkley Davant, Miami, for Suez Co.
Joseph E. Price, Jr., Fort Lauderdale, for Halpin, Inc.
Fee, Parker Neill, Fort Pierce, for Alton A. Register.
Kastenbaum, Mamber Gopman, Miami Beach, for respondent.
Before PEARSON, TILLMAN, C.J., and BARKDULL and HENDRY, JJ.
The above-titled petitions for certiorari were presented to this court as one, and since the questions of law are equally applicable to all, this opinion and ruling shall be determinative of all such petitions.
The petitioners, defendants below, seek review of the order of the circuit court of Dade County which denied defendants' motions to dismiss for plaintiff's failure to take any affirmative action in the prosecution of the cause for one year.
The respondent, plaintiff below, filed her complaint on April 22, 1960. The defendants, within the time prescribed by the rules, filed their motions to dismiss the complaint on the ground that it failed to state a cause of action. The plaintiff took no further action after filing her complaint. Defendants allege that after one year had elapsed from the date of the filing of the complaint, they filed their motions to dismiss the cause for want of prosecution pursuant to § 45.19, Fla. Stat., F.S.A.
The court, after hearing argument of counsel for the respective parties, entered its order denying the defendants' motions to dismiss the cause for want of prosecution.
The writ will not ordinarily issue to review interlocutory orders at law which are reviewable on appeal from the final judgment. However, there are some well-settled exceptions to the principle. It was held in Kaufman v. King, Fla. 1956, 89 So.2d 24, 26, that certiorari is the proper remedy where the court below acts without or in excess of its jurisdiction or "where the interlocutory order does not conform to the essential requirements of law and may reasonably cause material injury throughout the subsequent proceedings for which the remedy by appeal will be inadequate." Ford Motors v. Havee, Fla.App. 1960, 123 So.2d 572; White v. Spears, Fla.App. 1960, 123 So.2d 689.
We are of the view that the order before us for review does not come within the foregoing exceptions. There is nothing in the record to show that the denial of the motion to dismiss for want of prosecution will cause material injury to the petitioners throughout subsequent proceedings of this cause for which remedy by appeal will be inadequate. United Life Ins. Co. v. Jowers, Fla.App. 1960, 118 So.2d 85.
For the reason herein stated certiorari is denied and the petition is dismissed.
Writs denied.
On Petition for Rehearing of Case No. 61-445
Petitioner has by petition for rehearing called to our attention our own decision in Advance Tool and Dye, Inc. v. Superior Stampings, Inc., 130 So.2d 291. In that case we considered on petition for certiorari an order reinstating a cause originally dismissed pursuant to § 45.19, Fla. Stat., F.S.A., for want of prosecution. The opinion in that case did not pass upon the propriety of petition for writ of certiorari as a means for review of an order denying a motion to dismiss under section 45.19, Fla. Stat., F.S.A. To the extent that the opinion in the present case may be in conflict with our opinion in Advance Tool and Dye, Inc. v. Superior Stampings, Inc., supra, the holding in the instant case shall be considered as overruling any conflicting holding in Advance Tool and Dye, Inc. v. Superior Stampings, Inc., supra.