Scarlett v. Frederick

This cause is before us on demurrer to petition and return to Rule Nisi in Prohibition. The record shows that no action was taken in prosecution of the cause after April 1, 1935 until April 1, 1938, when defendant moved to dismiss under the provisions of Chapter 14554, Acts of 1929, Section 4218 (1) Perm. Supp. C. G. L. Section 1 of the Act provides: "All actions at law or suits in equity pending in the several Courts of the State of Florida in which there shall not affirmatively appear from some action taken by the filing of pleadings, order of court, or otherwise, that the same is being prosecuted, for a period of three (3) years, shall be deemed abated for want of prosecution and the same shall be dismissed by the Court having jurisdiction of the cause, upon motion of any person, firm or corporation interested, whether a party to the action or suit or not, without revivor or notice; provided this Act shall not become effective in respect to actions or suits now pending until the first day of January A.D. 1930. Provided further that actions or suits dismissed under the provisions hereof may be reinstated by petition upon good cause shown to the Court filed by any party in interest within six months after such order of dismissal." *Page 409 The general rule for computing the time within which a thing must be done is that we count the time excluding the day on which the initial act occurred and including the corresponding future date. See Savage v. State, 18 Fla. 970; Croissant v. DeSoto Imp. Co. 87 Fla. 530, 101, So. 37. The record shows that on April 1, 1938 plaintiff filed in the office of the Clerk of the Circuit Court notice as follows: "To: Jordan Fielding Esqs., DeLand, Florida; Scarlett Futch, Esqs., DeLand, Florida; Attorneys of Record for J.A. Scarlett, defendant in the above entitled cause." "You will please take notice that we will on Wednesday the 6th day of April A.D. 1938, at the hour of 10: 00 o'clock A. M., or as soon thereafter as counsel can be heard, call up for argument before the Honorable H.B. Frederick, one of the Judges of the above styled court, at his chambers in Daytona Beach, Florida, or wherever said Judge may be, all undisposed of pleadings in the above entitled cause." "HULL, LANDIS WHITEHAIR" "Attorneys for Plaintiff." This constituted action taken by which it appears that the case was being prosecuted and such notice was filed on the last day of the three year period contemplated by the statute. Aside from this, we must hold that under the provisions of Chapter 14554, supra, the running of the three-year period without action showing the cause is being prosecuted does not deprive the Court of jurisdiction because the statute requires an order of dismissal to be made by the court and retains in the court jurisdiction for the period of six months after *Page 410 order of dismissal within which the court may by order reinstate the cause. So the court was not without jurisdiction to make the order and even if the order was erroneous, it was not one as to which prohibition would lie. Rule Nisi is quashed and the cause dismissed. So ordered. BROWN, C. J., WHITFIELD and ADAMS, J. J., concur.