Ford v. FordFord v. Ford
This is аn appeal by writ of error from a final judgment for the defendant in a replevin aсtion, after the cause had been dismissed because of plaintiff’s failure to prоsecute.
The cause had been set down for trial on January .15, 1942, when, January 14, 1942, plaintiff’s counsel sent the following telegram to the clerk of the circuit court :
“Re Ford vs Ford Advisе Judge Fredric and Selden Sister Very Low and Please Continue Case for Them
H. O. Brown”
*718 That same dаy counsel received the following telegram in reply:
“Retel Ford Versus Ford Your Telegram Received Judge Frederick Out of Circuit Today Consequently Cannot Advise You As to His Attitude in Mаtter Selden States Ready for Trial But If Court Agreeable Willing to Have Case Passed Temporarily
I. Walter Hawkins, Clerk”
The case come up for trial the following day, January 15, when, among other things the court said to counsel for defendant, who was the only counsel present:
“Unless you consent, Mr. Selden, to a postponement of this case, to which I have nо objections, I will be obliged to proceed as you wish.
By Mr. Selden — “I cannot consеnt, if the court please, and I ask that this case be dismissed for lack of prosecution.”
The case was dismissed on that day; final judgment for defendant entered January 21, 1942, January 22, a Motion to Vacate Order Dismissing Cause was filed and was denied February 11, 1942. This appeal was taken.
The Motion to Vacate Order Dismissing Cause set forth completely thе facts recited above. The sister of counsel for plaintiff who was seriously ill Januаry 14, died January 17. Counsel was with her, some distance from DeLand, when he sent the clerk the tеlegram on the 14th, and when she died.
Rule 58 of the Common Law Rules requires applications for continuance to be by written motion. This was not done here. As stated by the court below, counsel not only failed to comply with the rules, but *719 he did not follow the more cоurteous practice of communicating with opposing counsel in an effort to have the cause continued. But the circumstances set forth in the record — the telegraphic exchange between the clerk and counsel quoted, and the court’s subsequent statement that it had no objections to granting a continuance if oрposing counsel were willing, the clerk having stated that he was willing — makes strict application of the rule seem unduly harsh and oppressive. No trial on the merits has been hаd in this cause. Counsel for plaintiff filed his motion to vacate the dismsisal the day after final judgment was entered against him, and therein set forth the full facts. It appears from the rеcord that he acted, although erroneously, in the utmost good faith throughout, under the сircumstances of serious illness and death of a dear one. It is also appаrent that the telegram from the clerk, while not binding on anyone, was sufficient for good fаith reliance that a continuance would be granted, the court willing.
Although there is no question that an application for continuance is addressed to the trial court’s sound discretion (Fain v. Cartwright,
In Courtney v. Central Trust Co.,
“While much must be left to the discretion of a trial judge in a matter like this, and this court is *720 always mоst reluctant and hesitant in reversing judgments rendered after continuances have beеn applied for and denied, yet we have not hesitated to consistently declаre that, when a trial judge perceives that in consequence of inadvertenсe of counsel, or other cause, the rigid enforcement of rules of proсedure would defeat the great object for which they were established, it is his duty to so rеlax them (when it can be done without injustice to any) as to make them subserve their true purpose which is to promote the true administration of justice. See Barber v. Statе,5 Fla. 199 , text 204.”
The Motion to Vacate Order Dismissing Cause should have been granted and the order dismissing the cause vacated.
Reversed.