Opinion
March 21, 1952.
Upchurch, Melton Upchurch, St. Augustine, for relator.
A.W. Chadwick, Jr., St. Augustine, and Martin Sack, Jacksonville, for respondents.
Relator has filed a petition suggesting the issuance of a writ of prohibition to be directed to the Circuit Court in and for St. Johns County, Florida, and the Honorable Geo. Wm. Jackson as Judge of said Court, requiring the Honorable Geo. Wm. Jackson as such Judge and Helen Braddock as administratrix of the estate of Fred E. Braddock, deceased, to show cause why a writ of prohibition should not be issued prohibiting the Court and Judge thereof from further consideration of this cause or from doing any act or thing therein or making any order or orders therein or entering any judgment therein.
This suggestion for writ of prohibition is predicated upon relator's contention that neither the Circuit Court in and for St. Johns County, Florida, nor the Honorable Geo. Wm. Jackson as Judge thereof, has jurisdiction of the subject matter of said cause "for the reason that the period of one month allowed by Section 45.19 Florida Statutes 1949, F.S.A., for the reinstatement of a dismissed action had expired prior to the filing of the petition and motion for reinstatement by Respondent Helen Braddock as administratrix of the estate of Fred E. Braddock, deceased, and that the jurisdiction of the Circuit Court in and for St. Johns County, Florida, over the subject matter of said action thereby terminated at the end of such period."
It has been made to appear in the petition filed by the relator that this case was dismissed on November 5, 1951, for want of prosecution as provided by Section 45.19, supra, and that on December 6, 1951, Respondent Helen Braddock as administratrix of the estate of Fred E. Braddock, deceased, filed a suggestion of death. It further is made to appear that the said respondent filed petition for reinstatement of the dismissed suit on December 7, 1951, and on the same day she filed a motion for reinstatement. In the petition for reinstatement the petitioner, respondent herein, alleged that negotiations for settlement of this suit had been in progress prior to the time of the death of Fred E. Braddock on the 30th day of August, 1951, and that for some period of time it had been understood between counsel for the respective parties litigant that no steps were to be taken or papers filed in said cause pending the result of such negotiations. They further asserted that upon the strength of such understanding no proceedings were taken on behalf of the plaintiff or the petitioner. In her motion for reinstatement she takes the position that in view of the death of the plaintiff below, Fred E. Braddock, prior to the entry of said order of dismissal, said order was inadvertently entered.
The question which we must decide is whether under the foregoing facts and circumstances the Circuit Court in and for St. Johns County, Florida, and the Honorable Geo. Wm. Jackson, Judge thereof, is exceeding its and his power, jurisdiction and authority in continuing to consider this action because the petition and the motion for reinstatement were filed more than one month after the entry of the order of dismissal.
In determining the question whether the Court was without jurisdiction to enter the order of reinstatement and continue to consider this case we must decide whether the running of the statutory period [see Section 45.19 Florida Statutes 1949, F.S.A.] of one year during which the cause was not being prosecuted was tolled upon the death of Fred E. Braddock. We have never passed directly upon this question although we indicated in Scarlett v. Frederick, Circuit Judge, 147 Fla. 407, 3 So.2d 165, 166, that when a cause is dismissed for want of prosecution the court's jurisdiction ceases after the expiration of the period of time within which the court may by order reinstate the action. In that case we said: "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 order of dismissal within which the court may by order reinstate the cause." (Italics supplied.)
We were not dealing, in Scarlett v. Frederick, supra, with the question of whether the running of the statutory period without action having been taken showing that the cause is being prosecuted, was tolled by the death of the sole plaintiff.
In the case of Alford v. Moore, Fla., 48 So.2d 754, we had before us a somewhat similar question but did not find it proper or necessary to decide it.
We stated in Coe v. Finlayson, 41 Fla. 169, 26 So. 704, 708: "As a general rule a suit may be revived at any time before the cause of action is barred by the statute of limitations applicable, and in case of the abatement of the suit by the death of the plaintiff the statute will not run until administration on his estate has been taken out. Perry v. Jenkins, 1 Mylne Craig 118; Mason v. [Hartford, P. F.] Railroad Co., [C.C.] 19 F. 53; Story, Eq. P1. § 831. The general rule of construction is that a statute of limitations will not be held to run in the absence of a person in being who is capable of suing. Murray v. East India Co., 5 Barn. Ald. 204."
It was conceded in oral argument by counsel for the relator that Section 45.19, supra, is a statute of limitations. Certainly, it is in the nature of a statute of limitations but it is not what is customarily meant when we speak of the statute of limitations. A suit cannot be prosecuted any more readily than it can be begun in the absence of a person in being who is capable of prosecuting or instituting a suit.
The suit abated upon the death of Fred E. Braddock. See Brett v. Ming, 1 Fla. 447. There was no one in being thereafter capable of continuing the suit by taking any action therein until the lawful appointment of a personal representative of his estate. It is axiomatic that under such circumstances a statute providing for the dismissal of a suit for want of prosecution must necessarily be tolled upon the death of a sole plaintiff. We are impelled to hold that the operation of the statute, Section 45.19, supra, was tolled upon the death of Fred E. Braddock and did not be gin to run until the administratrix was duly appointed and qualified to act. Consequently, the order dismissing the cause for want of prosecution was erroneously, although inadvertently, entered. There was no unusual or unexplained delay in the appointment of the administratrix of the estate of Fred E. Braddock and the administratrix used due diligence in filing her petition and her motion for reinstatement.
Counsel for the relator argued very impressively that we should not hold in this case that the operation of Section 45.19, supra, was tolled by the death of Fred E. Braddock because such holding would in some cases place an undue hardship upon lawyers who might examine an abstract of title to real property, find that a suit had been dismissed for lack of prosecution and not reinstated, and then be saddled with the burden of attempting to determine whether the sole party plaintiff was living at the time the order of dismissal was entered. Our answer to this suggestion is two-fold. In the first place, this is not a suit involving the title to real property and no lien can exist upon any real property unless and until a final judgment should be entered in favor of the plaintiff below, one of the respondents herein. Secondly, it is not made to appear that any third party has acted to his prejudice in reliance upon the order of dismissal.
We deem it appropriate to suggest that it may be well for the Legislature to consider an amendment to, or of, Section 45.19, supra, and in and by such amendment provide that notice should be given upon the application for dismissal of any action for want of prosecution.
It is ordered that relator's suggestion for writ of prohibition be and it is hereby denied.
SEBRING, C.J., and CHAPMAN and THOMAS, JJ., concur.