249 So. 2d 518 | Fla. Dist. Ct. App. | 1971
This appeal by the plaintiffs is from an order of the trial judge which upon his own motion dismissed the cause for lack of prosecution pursuant to RCP 1.420(e), 30 F.S.A. It appears that the trial judge was mistaken in his finding that, “ * * * it appearing that no action, by any party to the cause, has been taken by the filing of pleadings, Order of Court, or otherwise, in this case for a period of more than one year prior to the date of this order. * * therefore, we reverse.
An examination of the record reveals that in a response to the trial judge’s re-notice of the hearing on the court’s motion for order of dismissal, attorney for the plaintiff-appellant filed an affidavit in which he set forth that one of the plaintiffs had suffered a severe heart attack and stroke but that all of the plaintiffs were now ready to proceed to trial at any time the court would set the trial. Although this tender of trial did not technically comply with the court’s last order continuing trial because of the illness of this same plaintiff, it nevertheless amounted to an offer of immediate trial and as such was a pleading in the cause.
Therefore, it appearing that the trial court based its dismissal upon a mistaken finding as to the posture of the cause before it, the order appealed is reversed and the cause remanded for an order setting the cause for trial as expeditiously as can be done.
Reversed and remanded.