Summary
concluding that dismissal for failure to timely move to substitute parties pursuant to rule 1.260 should have been without prejudice
Summary of this case from Bryant v. GeoghaganOpinion
No. 77-1022.
April 4, 1978.
Appeal from the Circuit Court, Dade County, Edward S. Klein, J.
H.C. Starkweather, Miami, for appellants.
Petersen Feder, Miami, for appellees.
Before HENDRY and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
This is an appeal by the plaintiffs below from an order dismissing an action filed by them on April 28, 1976 for damages for personal injuries received by appellant, Gardenia DeArmas, as a result of an automobile accident alleged to have been caused by the defendant, Nathan Blonstein, against whom, with his indemnity liability insurer, the action was brought.
The defendant-insurer filed an answer denying coverage. On September 14, 1976, the attorneys for the defendant-insurer filed a suggestion of death, stating that the said Nathan Blonstein had died prior to the filing of the complaint. He had died in January of 1976, some three months prior to the filing of the action.
On February 1, 1977, the defendant-insurer filed a motion to dismiss. There was no substitution of parties. See: Fla.R. Civ.P. 1.260(a)(1) and (2). The motion was granted by an order wherein the court stated: "and judgment be and is hereby entered in favor of the Defendant and against the Plaintiffs, with costs to be hereafter taxed, and the Plaintiff shall go hence without day".
Appealing therefrom, appellant contends the dismissal of the action was error. We hold no error was thereby committed, but amend the dismissal order to be one without prejudice.
Judgment affirmed as amended.