Greene v. American Trash Hauling Co., No. 62-714

CourtCourt of Appeal of Florida (US)
Writing for the CourtBefore PEARSON, TILLMAN; CARROLL
Citation154 So.2d 726
PartiesVance GREENE, and Jack F. Greene as Administrator of the Estate of Samuel C. Greene, deceased, Appellant, v. AMERICAN TRASH HAULING CO., Inc., a Florida corporation, Appellee.
Decision Date26 February 1963
Docket NumberNo. 62-714

Page 726

154 So.2d 726
Vance GREENE, and Jack F. Greene as Administrator of the Estate of Samuel C. Greene, deceased, Appellant,
v.
AMERICAN TRASH HAULING CO., Inc., a Florida corporation, Appellee.
No. 62-714.
District Court of Appeal of Florida, Third District.
Feb. 26, 1963.

Page 727

Frates, Fay & Floyd and Kenneth L. Ryskamp, Miami, for appellant.

Walton, Lantaff, Schroeder, Atkins, Carson & Wahl, Miami, for appellee.

Before PEARSON, TILLMAN, C. J., and CARROLL and HENDRY, JJ.

CARROLL, Judge.

The appellee's motion to dismiss the appeal is denied. A plaintiff may appeal an order of nonsuit without the order being in form of a final judgment. §§ 59.02, 59.05, Fla.Stat., F.S.A.

At the trial the plaintiff elected to take an involuntary nonsuit because of a ruling of the court, and the order for nonsuit was appealed. The movant contended the order was not appealable because it did not include language necessary to make it a final judgment.

Appellee cited cases covering a fifty year period, holding such an order must be final in form to be appealable. However, in 1941 the law was changed to except orders of involuntary nonsuit from the statute restricting writs of error or appeals in law actions to final judgments. See §§ 59.02 and 59.05, Fla.Stat., F.S.A. The earlier cited cases were correct in so holding, but a dictum in the cited case which was decided after 1941, (Schwenck v. Jacobs, (1948) 160 Fla. 33, 33 So.2d 592, 594) stating that an order for nonsuit without an order of dismissal was not appealable because not final, appears in conflict with the statutes which then provided and now provide otherwise.

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4 practice notes
  • Thoman v. Ashley, No. 4548
    • United States
    • Court of Appeal of Florida (US)
    • December 18, 1964
    ...rule which prohibits a defendant from appealing a voluntary nonsuit. See Greene v. American Trash Hauling Co., Inc., Fla.App., App.1963, 154 So.2d 726. It has also been held that a defendant may not obtain review of an order on nonsuit by resort to prohibition. State ex rel. Paluska v. Whit......
  • Peaslee v. Michalski, No. 4955
    • United States
    • Court of Appeal of Florida (US)
    • August 26, 1964
    ...Co., 57 Fla. 118, 49 So. 501. Cf. Conner v. Wagner, Fla.App.1961, 135 So.2d 441; Greene v. Trash Hauling Co., Inc., Fla.App.1963, 154 So.2d 726; Dodson v. Crews, Fla.App.1964, 164 So.2d 252; Bennett v. Fratus, Fla.App.1964, 164 So.2d The foregoing cases clearly show that an appropriate and ......
  • Greene v. American Trash Hauling Co., Inc., No. 62-714
    • United States
    • Court of Appeal of Florida (US)
    • June 11, 1963
    ...Third District. June 11, 1963. Appeal from Circuit Court, Dade County; Grady L. Crawford, Judge. PER CURIAM. Affirmed. See also Fla.App., 154 So.2d 726. ...
  • Bennett v. Fratus, No. 64-304
    • United States
    • Florida District Court of Appeals
    • June 2, 1964
    ...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 It is so ordered. ...
4 cases
  • Thoman v. Ashley, No. 4548
    • United States
    • Court of Appeal of Florida (US)
    • December 18, 1964
    ...rule which prohibits a defendant from appealing a voluntary nonsuit. See Greene v. American Trash Hauling Co., Inc., Fla.App., App.1963, 154 So.2d 726. It has also been held that a defendant may not obtain review of an order on nonsuit by resort to prohibition. State ex rel. Paluska v. Whit......
  • Peaslee v. Michalski, No. 4955
    • United States
    • Court of Appeal of Florida (US)
    • August 26, 1964
    ...Co., 57 Fla. 118, 49 So. 501. Cf. Conner v. Wagner, Fla.App.1961, 135 So.2d 441; Greene v. Trash Hauling Co., Inc., Fla.App.1963, 154 So.2d 726; Dodson v. Crews, Fla.App.1964, 164 So.2d 252; Bennett v. Fratus, Fla.App.1964, 164 So.2d The foregoing cases clearly show that an appropriate and ......
  • Greene v. American Trash Hauling Co., Inc., No. 62-714
    • United States
    • Court of Appeal of Florida (US)
    • June 11, 1963
    ...Third District. June 11, 1963. Appeal from Circuit Court, Dade County; Grady L. Crawford, Judge. PER CURIAM. Affirmed. See also Fla.App., 154 So.2d 726. ...
  • Bennett v. Fratus, No. 64-304
    • United States
    • Florida District Court of Appeals
    • June 2, 1964
    ...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 It is so ordered. ...

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