Scarlett v. Frederick , 147 Fla. 407 ( 1941 )

It might be well to call attention to the fact that we have discussed Chapter 14554, Acts of 1929, being Section 4218 (1) Perm., Supp. C. G. L., in several cases.

In the case of Hancock v. Hancock, 128 Fla. 684, 175 So. 734, it was held that where no affirmative action was taken in either the wife's suit for separate maintenance or on the husband's answer seeking a divorce for over three years, both husband's and wife's causes of action were abated and no action could be taken herein until proper proceedings to revive had first been instituted, and hence reference to a Special Master to take testimony, in absence of any proceedings to revive the wife's cause of action was error.

In the dissenting opinion which this writer wrote in the case of Wilbur v. Hampton, 128 Fla. 256, 174 So. 742, the following paragraph appears:

"Section 4318 (1) C. G. L., Permanent Supplement, taken from Chapter 14554, Acts of 1929, in force at that time, provides that all actions at law or suits in equity, in which it shall not affirmatively appear from some action taken by the filing of pleadings, order of court, or otherwise, that the suit is being prosecuted, for a period of three years, 'shall be deemed abated for want of prosecution' and dismissed upon motion, subject to reinstatement upon petition, for good cause shown, within six months after order of dismissal. The 'abatement' referred to in the statute is not absolute and automatic. An order of court is required, and the order of dismissal is subject to the power of the court on petition to reinstate for good cause."

The quoted paragraph takes practically the same position as that taken by Mr. Justice BUFORD in his opinion in this case. The majority of the Court decided the case of Wilbur v. Hampton, supra, on another point and the above quoted paragraph was in a dissenting opinion and dealt with a question which the majority of the Court evidently did not consider to be involved in the case. My dissenting opinion in that case was concurred in by Mr. Justice ELLIS.

Some references have been made to this statute in later cases but, with the exception of Hancock v. Hancock, supra, they are not pertinent to the issue here involved.