Petition for writ of certiorari brings for review a "failure to prosecute" decision of the Fourth District Court of Appeal at 250 So.2d 327 (1971). We tentatively accepted jurisdiction upon the basis of apparent conflict with prior decisions of this Court in Gulf Appliance Distributors, Inc. v. Long, 53 So.2d 706 (Fla. 1971), and Sroczyk v. Fritz, 220 So.2d 908 (Fla. 1969). Fla. Const. art. V, § 4(2), F.S.A.
This Court in Adams, speaking through our eminent, now retired Mr. Justice Drew, held this to be `action' sufficient to avoid dismissal. See also Mr. Justice Drew's concurring opinion in Sroczyk, supra, [Sroczyk v. Fritz, 220 So.2d 908 (Fla. 1969)], wherein he commented upon Adams, saying: ( 220 So.2d p. 913). `[T]he Adams' decision clearly held that "action" under the statute may be shown by acts outside the record in the trial proceedings.
"It is significant that, under the constitution the issuance of conflict certiorari is discretionary . . . ." Sroczyk v. Fritz, 220 So.2d 908, 911 (Fla. 1969). "Our concern is with the decision under review as a legal precedent to the end that conflicts in the body of the law of this State will be reduced to an absolute minimum and that the law announced in the decision of the appellate courts of this State shall be uniform throughout."
These are the source documents by which the majority finds "direct conflict" with other appellate decisions. Sroczyk v. Fritz, 220 So.2d 908, 911 (Fla. 1969). Fla. Const. art. V, § 3(b)(3).
In another "failure to prosecute" case, we are asked to review by conflict certiorari another decision of the Fourth District Court of Appeal, at 250 So.2d 326 (1971). It is alleged to conflict with the same prior decisions of this Court in Gulf Appliance Distributors, Inc. v. Long, 53 So.2d 706 (Fla. 1951), and Sroczyk v. Fritz, 220 So.2d 908 (Fla. 1969), as were asserted in Musselman Steel Fabricators, Inc. v. Radziwon, the other Fourth District case at 250 So.2d 327 (Fla.App. 4th 1971), cert. dischg. with opinion this day, 263 So.2d 218 (Fla. 1972), involving construction of the same Rule 1.420(e), 30 F.S.A. Fla. Const. art. V, § 4(2), F.S.A.
When a motion to dismiss under the rule is made a party must still show either active prosecution within the preceding year, or good cause for his failure to prosecute. Sroczyk v. Fritz, 220 So.2d 908 (Fla. 1969); Barrentine v. Vulcan Materials Co., 216 So.2d 57 (Fla.App. 1st, 1968); All State Building Materials, Inc., v. Peoples National Fund, Inc., 219 So.2d 464 (Fla.App. 1st, 1969); Dade County v. Moreno, 227 So.2d 548 (Fla.App. 3rd 1969). Turning to the issue presented, in our view neither the statute nor the rule contemplates that a party may show "prosecution" by filing a pleading after a motion to dismiss is made by the other side.
Although Steding alleges in her brief that her property sold at auction for a "grossly inadequate" price, there is no record on appeal to demonstrate that this is true. Without a record affirmatively demonstrating some basis to challenge the trial court's discretionary ruling, we must affirm. E.g., Sroczyk v. Fritz, 220 So.2d 908 (Fla. 1969); Mills v. Heenan, 382 So.2d 1317 (Fla. 5th DCA 1980). The parties represent that the successful bidders paid $58,300.00 for the property, an amount in excess of the final judgment.
The appellants, defendants below, are handicapped on this appeal by the absence of a transcript of the trial, which was not reported. See Sroczyk v. Fritz, 220 So.2d 908 (Fla. 1969); Wright v. Wright, 431 So.2d 177 (Fla. 5th DCA 1983); Balzam v. Cohen, 427 So.2d 329 (Fla. 3d DCA 1983); Mills v. Heenan, 382 So.2d 1317 (Fla. 5th DCA 1980). The defendants below — Johnson, West and Arns — took possession in 1979 of certain realty owned by the plaintiff, Leuschner, pursuant to a written lease and option to purchase.
Furthermore, we find no error in the trial court's award of $3,500 as attorneys' fees for the wife's attorney who was retained only six days prior to trial; no record has been provided to support appellant's contentions. See Sroczyk v. Fritz, 220 So.2d 908 (Fla. 1969); Mills v. Heenan, 382 So.2d 1317 (Fla. 5th DCA 1980); Vender v. 7900 Red Road Partnership, 346 So.2d 1059 (Fla. 3d DCA 1977). Appellant's remaining points lack merit. Affirmed.
Affirmed. See Adams Engineering Company, Inc. v. Construction Products Corporation, Fla. 1963, 156 So.2d 497; Sroczyk v. Fritz, Fla. 1969, 220 So.2d 908; Warner and Swasey Company v. Insurance Company of North America, Fla.App. 1974, 292 So.2d 45; Weich v. Cook, Fla.App. 1971, 250 So.2d 281.