Eaton v. Harrison

Per Curiam. This writ.of error is from a final judgment dismissing an action of replevin instituted in the Circuit Court of Volusia County by the plaintiffs in error against the defendants in error. It is contended here that the Court below erred in its order of dismissal and in its order entering final judgment in the cause. Thé record discloses that various and sundry steps were taken in the cause from the time of its inception in October, *1669 1926; to the date of the order of dismissal in January, 1929, all of which oh the record appear to be regular but immaterial to the question before us. The motion to dismiss was made and granted January 24, 1929, without notice to the plaintiff or their counsel, the cause being at issue on the docket and ready for trial but no date for trial having been set. It appears from the order- of dismissal that the said order was predicated on the fact that diligence had not been exercised by the plaintiff in “suing out a commission to take said depositions” but whether this was a fact or not it is shown that the commission was sued out and the depositions had been taken and were before the Court at the time the order of dismissal was made. A trial court may in its discretion dismiss a cause for failure to prosecute with diligence in the absence of plausible excuse therefor but no such showing is made here. It appears that the cause was long drawn out but the record is regular and does not warrant dismissal in the manner shown. We think therefore that in granting the order of dismissal on the showing made the trial court abused its discretion for which the cause must be and is hereby reversed. Reversed. Terrell, C. J. and Whitfield, Ellis, Strhm, Brown and Buford, J. J., concur.