Bennett v. Fratus
| Decision Date | 02 June 1964 |
| Docket Number | No. 64-304,64-304 |
| Citation | 164 So.2d 827 |
| Parties | Helen H. BENNETT, Appellant, v. John FRATUS, Appellee. |
| Court | Florida District Court of Appeals |
Dean, Adams & Fischer and Jeanne Heyward, Miami, for appellant.
Dermer, Rosen & Mofsky, Miami Beach, Richard M. Gale, Miami, for appellee.
Before CARROLL, HORTON and TILLMAN PEARSON, JJ.
This matter is before us on appellee's motion to dismiss an appeal taken by the defendant below from an order of voluntary nonsuit entered at the behest of the plaintiff during the course of a jury trial in a law action.
The trial court's order was as follows:
'This Cause coming on to be heard on the Plaintiff's Motion for a Non-Suit pursuant to Florida Statute 54.09, and the Defendant having objected to the Plaintiff's taking such non-suit it is hereby
'Ordered and Adjudged that the Plaintiff is hereby allowed to take a non-suit without prejudice, costs to be taxed against the Plaintiff.'
The order is nonappealable, and the appeal is hereby dismissed. Section 59.05, Fla.Stat., F.S.A., permits a plaintiff to appeal from an order, nonfinal in form, which allows an involuntary nonsuit. This appeal may not proceed under that section of the statute, and its vitality is dependent upon there being a final judgment or order of dismissal. Cf. Greene v. American Trash Hauling Co., Inc., Fla.App.1963, 154 So.2d 726. The order to which this appeal is directed lacks requisite finality.
It is so ordered.
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Thoman v. Ashley, 4548
...in discussed later in this opinion.3 E.g. Florida East Coast Railroad Co. v. Smith, Fla.App.,App.1964, 166 So.2d 233; Bennett v. Fratus, Fla.App.,App.1964, 164 So.2d 827; Florida East Coast Railroad Co. v. Jones, Fla.App.,App.1964, 166 So.2d 842, Second District opinion filed 26 August 1964......