State Ex Rel. Croker v. Chillingworth , 106 Fla. 323 ( 1932 )

The entry appearing in the Circuit Court Minutes was not a judgment. It contained none of the elements of a judgment. In a very broad and loose sense the word judgment may include the order or rule entered in the minutes, it nevertheless did not dispose of the merits of the case but merely directed a step in the proceedings under the provisions of Section 4736 C. G. L., 1927. It was not a determination by the Court upon the issue presented by the pleadings, nor did it ascertain and absolutely fix finally the rights of the parties in relation to the subject-matter in litigation, nor did it put an end to the action. It was a determination of a motion. It was not founded upon the whole record in the case but granted on a special application under Section 4763, supra. The entry was not even equivalent to a retraxit, nonsuit or nolle prosequi. It merely recited that the case was "dismissed on motion of defendant for lack of prosecution." No order of dismissal appears to have been made and signed by the judge.

I agree that an order of dismissal is a final order; that it takes the cause out of court and ousts any further jurisdiction of the court over the parties to the action or the subject-matter of the litigation and is such an order from which an appeal may be taken or to which a writ of error may be directed. 7 Stand. Enc. Prac. 683-691.

It is also true that in the absence of statute an order is necessary to confirm a discontinuance and until the entry of judgment of dismissal the court has jurisdiction of the case. This is the rule observed in California and makes for greater liberality in the exercise of jurisdiction. Barnes v. Barnes,95 Cal. 171, 16 L.R.A. 660.

In this State it has been held that jurisdiction of the parties is not lost by the mere entry of a non-suit without a final judgment rendered and entered thereon. Whitaker v. Wright, 100 Fla. 282, 129 So.2d Rep. 889; Spiker vs. Hester,101 Fla. 286, 133 So.2d Rep. 872.

Dismissal and discontinuance are synonymous terms in effect. At common law it signified a gap in the proceedings after suit was brought, a failure to continue the cause regularly from term to term. The plaintiff having left a gap in the proceedings the defendant was not under the duty of further attendance upon the court. Ex parte The State of Alabama, 71 Ala. 363, text 367; Penniman v. Daniel,91 N.C. 431.

A discontinuance had to be by leave of the court and upon its order. The power of the court to dismiss an action for want of prosecution exists independently of statute or rule of court. 18 C. J. 1192.

Section 4763, supra, does not require the trial judge to make an order of discontinuance or dismissal but its purpose is clear that the judge shall make such orders and entries as shall be found necessary. No order appears to have been made. A recital in the minutes that the cause was dismissed for lack of prosecution is not a judgment of dismissal which may be said to be final in the sense that the court has lost jurisdiction of the parties.

I think the writ of prohibition should be denied.

BROWN, J., concurs.