Summary
In Pollock v. Pollack, 116 So.2d 761 (Fla. 1959), the supreme court addressed the abatement statute from which rule 1.420(e) was adopted and held that it was not self-executing but required a party to seek dismissal under it.
Summary of this case from Noughton v. HookerOpinion
October 14, 1959. Rehearing Denied November 12, 1959.
Appeal from the Circuit Court, Volusia County, T.B. Revels, J.
W.J. Gardiner, Daytona Beach, Hull, Landis, Graham French and John L. Graham, De Land, for petitioners.
Norton Josephson, Daytona Beach, for respondents.
In Pollack v. Pollock the District Court of Appeal, First District, held that the Supreme Court of Florida had abandoned the position it took in the case of Hancock v. Hancock, to the effect that under provisions of the abatement statute (now § 45.19, F.S.A.):
Fla.App. 1959, 110 So.2d 474. What was said there is equally applicable to the cause of Pollack v. Pollock, Fla.App. 1959, 110 So.2d 477.
1937, 128 Fla. 684, 175 So. 734, 738.
"* * * the absence from the record of any affirmative action having been taken in the cause for a period of three years automatically abates the cause * * *."
thus rendering it legally dead, subject only to an order of dismissal upon proper motion at any time after the abatement.
We agree with the District Court's determination that we repudiated and receded from the Hancock rule in Scarlett v. Frederick, Dudemaine v. Shaw, and May v. State. The existing rule on this point of law was correctly restated by the District Court when it said:
1941, 147 Fla. 407, 3 So.2d 165.
1944, 153 Fla. 899, 16 So.2d 114.
Fla. 1957, 96 So.2d 126.
"F.S. § 45.19, F.S.A., is not self-executing but requires the moving party to seek dismissal before any affirmative action in the prosecution of the cause is taken subsequent to the required period for abatement." 110 So.2d 474, 477.
Since the requisite direct conflict is not present, certiorari is hereby denied as to both cases consolidated herein.
Certiorari denied.
THOMAS, C.J., and TERRELL, ROBERTS and DREW, JJ., concur.