Opinion
April 24, 1951.
Philip D. Beall, Pensacola, for petitioner.
A.L. Johnson and Woodrow Melvin, Milton, for respondent.
In April 1948, Annice Jernigan instituted a common law action against W.W. Slappy for the wrongful death of her husband. Defendant moved to dismiss the cause but pending said motion, the plaintiff filed a second suit in November 1948, which was tried in January 1949 and resulted in a mistrial. In October 1949 the plaintiff moved that the two causes be consolidated on the ground that they involved the same subject matter. On October 20, 1949, while this motion was pending, the Clerk of the Circuit Court entered an order dismissing the first suit for failure to file a declaration. January 23, 1950, the motion to consolidate was called to the attention of the Court and on consideration was granted.
May 22, 1950, on petition of Slappy, this Court granted a rule nisi in prohibition, directing the trial court to show cause why he should not be restrained from proceeding further in the cause. Return of respondent to the rule nisi recited the foregoing facts, on the basis of which it alleged that since the motion to consolidate was pending when the order of dismissal was entered by the Clerk of the Circuit Court, the cause was brought into the new term, consequently respondent had jurisdiction of the cause. Petitioner contends that the order merging the causes was a nullity and moved for peremptory writ of prohibition, notwithstanding the return. This motion was denied and the petitioner joined issue on the return to the rule nisi, relying on State ex rel. American Fire and Casualty Company v. Barns, 123 Fla. 148, 166 So. 553.
The point for determination is whether or not the order of this Court overruling the motion for peremptory writ of prohibition notwithstanding the return had the effect of finally disposing of the cause.
The answer to this question is of course affected by the fact of whether or not the cause was brought into the new term by the motion to consolidate. Petitioner contends that the return of the respondent is grounded on the premise that prohibition is not the proper remedy. There may be basis for this contention, but that is not the theory on which this Court overruled the motion for peremptory writ. Our view was that when respondent granted the motion to merge the causes, he had jurisdiction of the parties and the subject matter, because that motion, having been pending when the term closed, the case was brought over into the new term. This being the case, it necessarily follows that the court had jurisdiction, that there was no basis for prohibition, so the motion for peremptory writ was overruled.
Petitioner filed his joinder of issue on the return to the rule nisi on the theory that the motion for merger was a nullity and the court lost jurisdiction of the cause when the term expired. What we have said in the preceding paragraph concludes this question against petitioner's contention because we think respondent correctly held that the motion to merge was pending when the new term opened and preserved his jurisdiction to adjudicate the cause in the succeeding term.
It follows that State ex rel. American Fire and Casualty Company v. Barns, supra, does not rule this case. The order denying the motion for peremptory writ of prohibition disposed of the matter, and being so, there is nothing for us to consider on the joinder of issue so the rule nisi is quashed.
SEBRING, C.J., and THOMAS and CHAPMAN, JJ., concur.