Crews v. Woods
| Decision Date | 13 June 1952 |
| Citation | 59 So.2d 526 |
| Parties | CREWS et ux. v. WOODS et al. |
| Court | Florida Supreme Court |
W. Wallace Shafer, of Bentley & Shafer, Lakeland, for appellants.
John Bell, Tampa, of Knight, Thompson, Knight & Bell, Lakeland, for appellees.
This is an appeal from a summary judgment entered in a tort action instituted by appellants against appellees in the Circuit Court of Hillsborough County. The appellees filed their answer, which contained, among others, the defense of the statute of limitations; and, based upon such defense, the appellees filed a motion for summary judgment. The appellants thereupon filed a motion for leave to dismiss without prejudice, as authorized by 30 F.S.A. Common Law Rule 35. Thereafter, and after the trial judge had announced his intention to render summary judgment in appellees' favor, the appellants filed a motion entitled 'Motion for Order of Non-Suit,' together with a 'Notice of Plaintiffs' Non-Suit.' The trial judge, after a hearing, entered summary judgment for the appellees, in which judgment he also denied the appellants' motion for leave to dismiss and their 'Motion for Order of Non-Suit.'
The sole issue here is whether the appellants were entitled, as of right, to take a non-suit under the circumstances above mentioned.
Rule 35 of the new Florida Common Law Rules deals with the dismissla of actions and is identical with Rule 41 of the Federal Rules of Civil Procedure, 28 U.S.C.A., except that in Section (b) of Rule 32--which section is entitled 'Involuntary Dismissal; Effect Thereof'--there is appended the following clause: 'except, however, that nothing stated herein shall preclude a non-suit from being taken pursuant to any applicable statute.' Appellants contend that they are entitled to a non-suit as a matter of right under this provision of Section 35(b). This contention cannot be sustained.
Our 'non-suit' statute, Section 54.09, Florida Statutes, F.S.A. provides that 'No plaintiff shall take a non-suit on trial unless he do so before the jury retire from the bar.' Under this statute, it has long been the established rule in this state that a plaintiff was entitled, as of right, to take not only a voluntary non-suit but also a compulsory or 'involuntary' non-suit, that is, one which 'is prompted by an adverse ruling of the court which is preclusive of a recovery by the plaintiff * * * or impedes the proper presentation of plaintiff's cause of action.' Hartquist v. Tamiami Trail Tours, 139 Fla. 328, 190 So. 533, 540. See also Pitt v. Abrams, 103 Fla. 1022, 139 So. 152, and Haile v. Mason Hotel & Investment Co., 71 Fla. 469, 71 So. 540. It should be noted that the right to appeal from such an 'involuntary' non-suit has been expressly granted by statute, Section 59.05, Florida Statutes, which as amended by Chapter 22854, Laws of Florida, Acts of 1945, F.S.A., provides that 'When, because of any decision or ruling of the court on the trial of a cause, it becomes necessary for the plaintiff to suffer a nonsuit, he may appeal therefrom, and the facts, points, rulings, and decisions may be preserved for review, by...
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Thoman v. Ashley, 4548
...not recover in any event, as where it affirmatively appeared that the action was barred by some absolute limitation. E. g. Crews v. Woods, Fla.App., 1952, 59 So.2d 526; Hartquist v. Tamiami Trail Tours, 1939, 139 Fla.App., 328, 190 So. As noted, the legislature has not materially abridged t......
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Cook v. Lichtblau
...from being taken pursuant to any applicable statute.' The purpose and effect of this exception was described as follows in Crews v. Woods, Fla.1952, 59 So.2d 526: Rule 35 of the new Florida Common Law Rules deals with the dismissal of actions and is identical with Rule 41 of the Federal Rul......
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Dobson v. Crews, E-202
...is prompted by an adverse ruling of the court which is preclusive of a recovery by the plaintiff in the case at bar (Crews et al. v. Woods et al. Fla., 59 So.2d 526, and cases cited At common law, before the enactment of the statute of 2 Hen. IV. C. 7, a plaintiff had a right to be nonsuite......
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Gregg v. Gray
...it has been held that the plaintiff's right to a nonsuit is a qualified right and subject to the discretion of the court. Crews v. Woods, Fla.1952, 59 So.2d 526; Johns v. Puca, Fla.App.1962, 143 So.2d 568. See also Dobson v. Crews, Fla.App.1964, 164 So.2d 252; F. E. C. Railway v. Lewis, Fla......