Dade County v. Peachey, 65-152
Citation | 181 So.2d 353 |
Decision Date | 28 September 1965 |
Docket Number | No. 65-152,65-152 |
Parties | DADE COUNTY, a political subdivision of the State of Florida, and Louis Carter Hartley, Appellants, v. Frederick Arthur PEACHEY, Jr., as Administrator of the Estate of the deceased minor, Frederick Arthur Peachey, III, and Frederick Arthur Peachey, Jr., individually, Appellees. |
Court | Court of Appeal of Florida (US) |
William H. Peeples and John E. Finney, Sam Daniels, Miami, for appellants.
Frates, Fay & Floyd and Malcolm Fromberg, Miami, for appellees.
Before HENDRY, C. J., and TILLMAN PEARSON and BARKDULL, JJ.
We are required to decide on this appeal what shall be done in a case where the trial judge granted a nonsuit prior to the decision of the Supreme Court of Florida in Crews v. Dobson, Fla.1965, 177 So .2d 202. The Supreme Court in the Crews case held that the common law right of nonsuit no longer exists in this State and also approved the result reached by the District Court of Appeal, First District, in Dobson v. Crews, Fla.App.1964, 164 So.2d 252.
The factual basis for both the District Court of Appeal decision and the opinion of the Supreme Court was as follows: Crews had filed an action at law against Dobson. Immediately after the jury had been impaneled Crews moved the trial court for a nonsuit. The defendant moved for a judgment with prejudice. The trial judge granted the nonsuit. The defendant appealed the final judgment of nonsuit and urged error upon the failure of the trial judge to order a dismissal of the action with prejudice because of plaintiff's failure to proceed with the trial of the case.
Upon the appeal the District Court found the question presented to be 'whether the trial court erred in permitting the plaintiffs to take a voluntary nonsuit without order of court.' The court held:
In the case now before us, the position taken by the plaintiff-appellee in the trial court was substantially similar to that of the plaintiffs-appellees in Dobson v. Crews. It appears from the record that, because of the crowded quarters in the Dade County Courthouse, counsel sitting at the counsel table could hear some of the jury's deliberations. Plaintiff-appellee gave as the ground for his motion for a nonsuit the following:
'Now, the reason I am concerned about this, we can't help but hear what's coming out of here; and we can
hear, whether we should or not. We can't put our heads in the ground.
The defendants-appellants gave as their ground for opposition to the motion the following:
It should be pointed out that the record does not show a formal motion by the defendants-appellants for a dismissal with prejudice before the court granted the nonsuit. However, such a motion was made and denied prior to the signing of the final judgment of nonsuit.
The appellee argues with a great deal of reason that the cause should be returned to the trial court for a new trial because, (1) the plaintiff and the trial judge acted under a misapprehension of the law, and (2) if the plaintiff or the trial judge had known that the plaintiff did not have the procedural right he claimed, the court would have denied the motion, and the plaintiff would then have elected to proceed with the trial.
In Cook v. Lichtblau, Fla.App.1965, 176 So.2d 523, the District Court of Appeal, Second District, was presented with an appeal from a dismissal with prejudice where plaintiff had moved for a nonsuit. The plaintiff's motion for leave was prompted by an indication that the court was about to grant a motion for directed verdict which the defendant had made at the close of the plaintiff's case in chief. The record reflected uncertainty on the part of the trial court concerning the matter of nonsuit. The defendant made no motion for dismissal with prejudice. The appellate court reversed the dismissal with prejudice upon the holding that by dismissing the jury before he exercised his discretion, upon what in legal effect constituted a motion for dismissal without prejudice, the trial judge effectively foreclosed any possibility of exercising his discretion against granting the motion. The cause was remanded to the trial court with direction to declare a mistrial. The court summarized the situation where a plaintiff moves for a non-existent 'nonsuit' as follows:
We are wholeheartedly in sympathy with this sensible disposition of the problem because We find that we are not at liberty to adopt the course suggested by the appellee and indicated by Cook v. Lichtblau, supra, because in the instant case the jury had retired from the bar and no possible ground for a dismissal without prejudice was given by the plaintiff at the time he moved for a nonsuit. The trial court could not have granted a dismissal without prejudice upon the ground that the plaintiff knew that the jury's deliberations were going against him. In effect, the plaintiff simply refused to proceed with the case. It may well be true that the plaintiff would have taken a...
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Lacy v. Cox
...after the jury retires to consider its verdict," recommended that this Court reconsider the holding of Panzer. 5. Dade County v. Peachey, 181 So.2d 353 (Fla.Dist.Ct.App.1965) (holding that plaintiff's voluntary dismissal was deemed to be with prejudice because overhearing unfavorable jury d......
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Lacy v. Cox, E2003-00709-COA-R3-CV.
...case. There is authority from other jurisdictions which is helpful. A case quite similar to the present case is Dade County v. Peachey, 181 So. 2d 353 (Fla. App. 1965), cert den. 193 So. 2d 166 (Fla. 1966). In Peachey, due to an overcrowded courtroom, counsel for plaintiff was able to overh......
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Peachey v. Dade County
...decision to the extent it ordered a dismissal with prejudice and direct that the cause be remanded for a new trial. 1 Dade County v. Peachey, Fla.App.3rd, 181 So.2d 353.2 Fla.App., 167 So.2d 104, 108.3 Upon report by counsel that he overheard jury deliberations incorporating a mistaken prin......