Johns v. Puca

• Decision Date: 20 July 1962
• Docket Number: No. 2718,2718
• Citation: 143 So.2d 568
• Parties: Earl F. JOHNS, Appellant, v. Dominic PUCA, Appellee.
• Court: Florida District Court of Appeals

Page 568

143 So.2d 568

Earl F. JOHNS, Appellant, v. Dominic PUCA, Appellee.

No. 2718.

District Court of Appeal of Florida, Second District.

July 20, 1962.

Norman C. Roettger, Jr., of Fleming, O'Bryan & Fleming, Fort Lauderdale, for appellant.

Robert S. Lyons, Fort Lauderdale, for appellee.

LOVE, WILLIAM K., Associate Judge.

The above action was instituted in the trial court by the appellee, as plaintiff, seeking damages, in a Common Law action. The appellant had filed a counterclaim which was compulsory under Rule 1.13, 30 F.S.A. Upon trial, and at the close of plaintiff's case, defendant moved for a directed verdict and the Court announced its disposition to grant the Motion for the failure of plaintiff to prove negligence.

Plaintiff thereupon took an involuntary non-suit and moved the Court to dismiss the counterclaim, contending that it should fall with the non-suit under the doctrine of the Florida cases of Buffington v. Quackenboss, 5 Fla. 196; and Clarke v. Wall, 5 Fla. 476. The Court, over the objection of the defendant-counterclaimant, decided that the appropriate procedure would be to dismiss the counterclaim without prejudice.

Counsel for the parties have been unable to cite, and we have been unable to find, any Florida case directly in point. The right of non-suit came to Florida from the Common Law but at a time when the defendant had no right to plead setoff, recoupment, or counterclaim. A plea of setoff was first permitted in the year 1828 and the effect upon such a plea, in the event of non-suit, was presented to the Supreme Court of Florida in the case of Buffington v. Quackenboss and Clarke v. Wall, supra. It was determined in those cases that in the event of non-suit when a plea of setoff existed, that the plea would fall with the main action. The question was again presented to the Court in the case of Tomasello v. Walton, reported in 100 Fla. 710, 129 So. 840. Therein a majority of the Court reiterated that the plaintiff's right to non-suit could not be abridged by the existence of a plea of setoff. The opinion, however, quoted from Volume 9 Ruling Case Law, at page 202, as follows:

'The great weight of authority seems to support the rule that where a Defendant has interposed a counterclaim and asked for affirmative relief, the Plaintiff cannot prejudice the Defendant in any way by taking a non-suit * * * nor can he in any way prevent the Defendant from proceeding to judgment upon his counterclaim. But the Plaintiff may discontinue only as to his own claim or demand. A distinction has been made as to a counterclaim arising out of the transaction set forth in the complaint and one arising independently of the cause of action alleged in the complaint, it being held that where the first kind of counterclaim is set up the Plaintiff cannot voluntarily submit to a non-suit as it is proper that the rights of the parties arising out of the same transaction should be settled at the same time but that as to the second kind, Plaintiff may submit to a voluntary non-suit as to his own cause of action but cannot, by so doing, put an end to the Defendant's right to litigate his own counterclaim.'

Despite this recitation as to the general weight of authority, the Court proceeded to reaffirm the doctrine in the Buffington and Clarke cases and further cited the case of West Coast Fruit Company v. Hackney, 98 Fla. 382, 123 So. 758; National Broadway Bank v. Lesley, 31 Fla. 56, 12 So. 525 and Haile v. Mason Hotel & Investment Co., 71 Fla. 469, 71 So. 540. The latter two cases do not involve a setoff and the setoff in the Hackney case was abandoned. The majority opinion also cites the Alabama case Huffstutler v. Louisville Packing Co., reported in 154 Ala. 291, 45 So. 418, 15 L.R.A., N.S., 340. The dissenting opinion of the late Mr. Justice Ellis in the Tomasello case presents, to the writer, the better reasoning as to the question. It recognizes that the plea of setoff is basically one of confession and avoidance in that it recognizes and acknowledges the justice of the complainant's demand and sets up its own demand to counter-balance it. See Peacock Hotel, Inc. v. Shipman, 103 Fla. 633, 138 So. 144.

The harshness created by granting to the plaintiff the unbridled control of the trial of a defendant's plea of setoff or recoupment doubtless occasioned the amendment to the Common Law Rules in 1936 which provided in Rule 50 as follows:

'The Plaintiff may at any time discontinue his cause in the Clerk's office by paying costs and entering a written discontinuance thereof. Such discontinuance shall not affect any claim asserted by the Defendant by way of setoff but...