State Ex Rel. Croker v. Chillingworth

Davis, J. On October 1, 1931, the ease of Palsten Realty Company vs. Bula E. Croker was entered upon the trial docket of the Circuit Court of Palm Beach County as a case triable during the October Term of said Court. At the sounding of the docket the presiding Judge set the case for trial on December 8, 1931. Thereafter the case was called for trial on the day set and no one appearing for the plaintiff, the case was dismissed for lack of prosecution upon motion of the defendant. As evidence of the dismissal under the circumstances just related, the following entry was made in the Circuit Court Minutes: “ Palsten Realty Company, vs. #4056. Bula E. Croker. Case Called: Plaintiff not in Court or represented by Counsel: This ease having been regularly set for trial *325 for this date, was dismissed on Motion of Defendant, for lack of prosecution. ’ ’ On January 4, 1932, the October Term of the Circuit Court for Palm Beach County was adjourned sine die. On the 23rd day of February, 1932, the Circuit Judge entered an order reinstating the cause and placing it upon the trial docket for the March Term of Court. In this order he stated that his opinion was to the effect that the Court still had jurisdiction over the cause and the power to reinstate it and that the ends of justice would be best served by such disposition of the ease. The facts shown to the trial judge were fully sufficient to warrant, and in fact compel, the order of reinstatement under the circumstances, and if that were the only question to be considered in this proceeding we should unhesitatingly affirm the Circuit Judge’s conclusion as to the merits of the plaintiff’s application for reinstatement. But the defendant in the lower court, as relator, has filed in this court a suggestion for a writ of prohibition directed to Judge Chillingworth, the Circuit Judge, commanding him not to proceed with the further consideration of the cause thus reinstated, nor proceed to a trial of the same on the merits because of an alleged lack of jurisdiction to do so. The question therefore presented by the respondents’ demurrer to and motion to quash the suggestion for writ of prohibition is whether or not the Circuit Judge exceeded his jurisdiction in undertaking to reinstate the cause on the docket after it had been actually dismissed during term time, and the trial term at which it was so dismissed had been finally adjourned. The statutes of this State contemplate that clerks of the Circuit Court shall keep a trial docket upon which shall be noted all cases at law triable during a term of the Circuit Court. See Section 3076 R. G. S., 4857 C. G. *326 L. It is likewise made tlie duty of the presiding Judge, at each term of Court, after other business of the term shall have been disposed of, to call over all the causes standing upon the dockets and to make such orders and entries therein as shall be found necessary in relation thereto. See Section 3002 R. G. S., 4736 C. G. L. For the purposes of the present proceedings, we must presume that the case in question was properly placed upon the trial docket for the October, 1931, term of Court as a case triable at that term. This being so, the disposition of that case, once it w,as placed upon the trial docket as a case for trial at the term, became a part of the business of the term which was required to be disposed of in some manner during term time. To insure that such causes would be disposed of was the evident purpose of Section 4736 O. G. L., supra, making it the duty of the Judge to call over the docket at the end of the term and make such orders as should be found necessary in relation thereto. In this case the Judge, upon motion of the defendant, dismissed the pending suit for want of prosecution after it had been set for trial and the defendant had appeared ready to try it. The order made was undoubtedly proper under the circumstances and finally disposed of that case as a part of the business of the term subject to such action as might have been properly taken with regard to it before the term of court was finally adjourned. After the term finally adjourned the Circuit Court lost jurisdiction over its order of dismissal made during the term as much so as it lost jurisdiction over any other judicial action taken during the term which was a part of the business of that term. * It is an inherent right of the court, and therefore one *327 existing independently of the statute, to dismiss a suit for a failure to prosecute it with due diligence. Grigsby v. Napa County, 36 Cal. 585, 95 Am. Dec. 213, and note. After a plaintiff has suffered the dismissal of his cause of action, the court is without further jurisdiction and has no right to render any judgment in his favor nor any judgment against him. The parties are out of court for every purpose other than to carry the order into effect, or to vacate or modify the same'; and after the expiration of the term at which a suit is dismissed the court has no power to reinstate the cause. Gray v. Ames, 220 Ill. 251, 77 N. E. 219, 5 Ann. Cas. 174; note 26 L. R. A. (N. S.) 914. While a judgment dismissing an action at law not involving the merits is not a bar to a subsequent action and the same rule applies also to a judgment of non suit or a nolle prosequi * such judgment is nevertheless a sufficient disposition of the cause then pending to deprive the court of jurisdiction to' reinstate it after the expiration of the term of court at which the judgment of dismissal was properly entered. A common law case noted on the trial docket as a cause triable at a particular term of court is a part of the business required to be disposed of by the Court at that trial term, and an order made during the term dismissing the cause for want of prosecution passes beyond the jurisdiction of the Court to alter, vacate or modify upon application therefor not made until after the expiration of the term of court at which the order of dismissal was entered. It follows from what has been said that the Circuit Court of Palm Beach County was without jurisdiction to order a reinstatement of the case of Falsten Realty *328 Company v. Bula E. Croker, after the term of court ended on January 4, 1932, and that therefore a writ of prohibition absolute should be granted to restrain any further exercise of jurisdiction therein, but without prejudice to any right plaintiffs may have under the law to reinstate and maintain their suit as an original new action. Writ of prohibition issued. Whitfield, P.J., and Terrell, J., concur. Buford, C.J., concurs in the opinion and judgment. Ellis and Brown, J. J., dissent. Footnotes [*] See Alabama Hotel Co. v. Mott Iron Works, 86 Fla. 608, 98 Sou. Rep. 825; Goodwin v. Leesburg Citrus Growers Assoc., 135 Sou. Rep. 129. [*] Lambert v. Sanford, 18 Am. Dec. 149; Note 95 Am. Dec. 215; 34 Am. Dec. 98; 49 Am. Dec. 503; 49 A. S. R. 831; 85 A. S. R. 170.