City of Miami Beach v. Alexander

• Decision Date: 16 December 1952
• Citation: City of Miami Beach v. Alexander, 61 So.2d 917 (Fla. 1952)
• Parties: CITY OF MIAMI BEACH v. ALEXANDER.
• Court: Florida Supreme Court

Page 917

61 So.2d 917

CITY OF MIAMI BEACH v. ALEXANDER.

Supreme Court of Florida, Division A.

Dec. 16, 1952.

Dixon, DeJarnette & Bradford and James A. Dixon, Miami, for appellant.

John D. Marsh and Pine & Taylor, Miami, for appellee.

THOMAS, Justice.

The appellee sued the appellant for damages sustained when she was struck by a garbage truck, alleged to have been negligently operated by an agent, servant or employee of the city. This occurred June 28, 1950.

On August 8, 1950, an attorney of Miami, representing the appellee, wrote a letter to the city attorney of Miami Beach advising him of the mishap, giving in some detail the circumstances and the nature and extent of the injuries, and requesting an acknowledgment of 'this claim.'

In the ordinary course of pleading the city moved to dismiss the complaint on the ground, with one other, that it appeared on its face that there had been no compliance with a requirement of the charter that, as a condition precedent to the maintenance of any suit against the city based on tort, the city be notified of the claim within thirty days after its origin. This motion was denied, and the point was again presented in the answer where it remained, despite an effort to remove it by motion to strike.

On the eve of the trial, counsel for the city asked for a judgment in favor of the city on the pleadings inasmuch as forty-one days had elapsed between the injury and the notice. After the judge announced that he would grant this motion, but before the judgment was actually entered, a motion in arrest of judgment was made by the appellee containing the request that the cause proceed to trial, or that the plaintiff be permitted to reply to that part of the answer setting up the charter restriction so that the plaintiff might show that she was rendered unconscious by her injuries 'for such period of time as to be unable * * *' to perform the condition precedent. The day the judgment was entered the defendant, appellant, moved to strike the motion in arrest.

When the motion to arrest and the motion to strike it reached the judge for a ruling the plaintiff, appellee, asked that the motion to arrest be considered one to vacate. The judge granted the request, granted the motion, and denied the motion to strike. From this order, in effect simply one vacating the judgment and placing the cause on the calendar for the ensuing term, this appeal was taken.

As we approached the take of writing this opinion, we first decided that the order vacating the judgment was not appealable, then we were reminded that a motion to dismiss on this ground had been presented many months before and we had denied it on the authority of Seaboard Oil Co. v. Chalk, 112 Fla. 387, 150 So. 605. We then re-examined the opinion in that case in the light of the facts there and compared those facts with the ones reflected in this record with the result that we did not find any occasion to disturb the order on the motion to dismiss, especially as that ruling had become the law of this case and had been relied upon by counsel. Nor are we convinced that despite the ruling there is such a want of jurisdiction to entertain this appeal and dispose of it upon the merits as to warrant our recession from the first ruling.

So w...