Musselman Steel Fabricators, Inc. v. Radziwon

District Court of Appeal of Florida

Musselman Steel Fabricators, Inc. v. Radziwon

250 So. 2d 327, 1971 Fla. App. LEXIS 6279

District Court of Appeal of Florida·Decided June 21, 1971·No. No. 71-198·Published·Cited by 5 cases

Opinion

PER CURIAM.

By interlocutory appeal we are asked to review an order of the trial court denying defendant’s motion to dismiss for failure to prosecute.

The record discloses that within a one-year period immediately prior to the filing of the motion to dismiss the court reporter filed with the clerk the depositions of certain witnesses. Although the depositions had been taken by the defendants at a time more than one year prior to the filing of their motion, we hold that the filing of the depositions constitutes sufficient affirmative showing of prosecution of the action to justify denial of a motion to dismiss filed under Rule 1.420(e) R.C.P., 30 F.S.A. Cf. Fund Insurance Companies v. Preskitt, Fla.App.1970, 231 So.2d 866; Cypress Corporation of Florida v. Smith, Fla.App.1969, 218 So.2d 481; Rosenfeld v. Glickstein, Fla. App.1967, 200 So.2d 242; Owens v. Ken’s Paint and Body Shop, Fla.App.1967, 196 So.2d 17; and Eastern Elevator, Inc. v. Page et al., Fourth District Court of Appeal, 250 So.2d 326, opinion filed June 18, 1971.

Affirmed.

WALDEN, OWEN and MAGER, JJ., concur.

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PER CURIAM.

By interlocutory appeal we are asked to review an order of the trial court denying defendant’s motion to dismiss for failure to prosecute.

The record discloses that within a one-year period immediately prior to the filing of the motion to dismiss the court reporter filed with the clerk the depositions of certain witnesses. Although the depositions had been taken by the defendants at a time more than one year prior to the filing of their motion, we hold that the filing of the depositions constitutes sufficient affirmative showing of prosecution of the action to justify denial of a motion to dismiss filed under Rule 1.420(e) R.C.P., 30 F.S.A. Cf. Fund Insurance Companies v. Preskitt, Fla.App.1970, 231 So.2d 866; Cypress Corporation of Florida v. Smith, Fla.App.1969, 218 So.2d 481; Rosenfeld v. Glickstein, Fla. App.1967, 200 So.2d 242; Owens v. Ken’s Paint and Body Shop, Fla.App.1967, 196 So.2d 17; and Eastern Elevator, Inc. v. Page et al., Fourth District Court of Appeal, 250 So.2d 326, opinion filed June 18, 1971.

Affirmed.

WALDEN, OWEN and MAGER, JJ., concur.

Musselman Steel Fabricators, Inc. v. Radziwon, 250 So. 2d 327, 1971 Fla. App. LEXIS 6279 (Fla. Ct. App. 1971).

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Opinion

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