Greene v. American Trash Hauling Co., 62-714
| Decision Date | 26 February 1963 |
| Docket Number | No. 62-714,62-714 |
| Parties | 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. |
| Court | Florida District Court of Appeals |
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.
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.
To continue reading
Request your trial
-
Thoman v. Ashley, 4548
...has been no relaxation of the 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.......
-
Peaslee v. Michalski, 4955
...Stock Co. v. J. J. McCaskill 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 ......
-
Greene v. American Trash Hauling Co., Inc., 62-714
...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
...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 It is so ordered. ...