Miller v. Scobie
| Decision Date | 29 January 1943 |
| Citation | 11 So.2d 892,152 Fla. 328 |
| Parties | MILLER et al. v. SCOBIE (two cases). |
| Court | Florida Supreme Court |
Rehearing Denied Feb. 26, 1943.
Appeals from Circuit Court, Dade County; Stanley Miledge, judge.
Robert C Lane and Edward F. Boardman, both of Miami for appellant Lenore Miller.
Wallace Ruff and Thos. J. Ready and Ruff & Ready, all of Miami in pro. per., and J. T. McBrayer, of Miami, for appellants Ruff & Ready.
Kurtz, Reed, Sappenfield & Cooper, of Miami, for appellee.
Lenore Miller employed the firm of Ruff and Ready to bring an action against Devid P. Scobie for breach of promise. She agreed to pay them fifty per cent of all sums recovered. The defendant moved to dismiss the cause and attached to said motion a stipulation entered into between the parties for that purpose. The plaintiff answered the motion to dismiss alleging that the stipulation was procured by fraud. There followed a barrage of pleading not necessary to detail but which ultimately resulted in an order referring the issues made by the answer to the motion to dismiss to a jury for trial.
The court later revoked this order by transferring the cause to Division F where the issues made by the answer to the motion to dismiss were tried by the court without a jury resulting in a judgment of dismissal. Attorneys for Lonore Miller had moved that they be permitted to continue the prosecution of the cause in the name of the plaintiff for the purpose of recovering their fee. The order of dismissal denied this motion. The attorneys Ruff & Ready appealed. Appellant Lenore Miller having employed other counsel, they moved to be recognized as such and that they be permitted to take such steps as were necessary to perfect the appeal in her behalf. The court granted this motion.
We are therefore confronted with two appeals, to wit: One by counsel for Lenore Miller in their behalf seeking to reverse the order refusing to permit them to continue the cause for the purpose of collecting their fee, and that by Lenore Miller in her own behalf seeking a reversal of the order of dismissal.
In the appeal of Lenore Miller, it is contended that the judgment below should be reversed because (1) the stipulation for dismissal was not signed by the attorneys for the parties to the cause, (2) the plaintiff was deprived of her right of trial by jury on the issue made by the answer to the motion to dismiss, (3) the order in which the trial court permitted the evidence to be taken on said issues was prejudicial to her right.
The stipulation for dismissal was signed by the parties and the fact that it was not signed by counsel is not shown to have prejudiced any right of appellant. We have examined the evidence taken by the court on the issue of whether or not the stipulation to dismiss was obtained through fraud and the ruling of the trial court was correct on this. The answer to the motion presented an issue for the court to adjudicate, but if it may be admitted that error was committed in refusing to submit it to a jury no harmful error is shown to have been committed. The order in which the evidence on the issues so made was submitted was a matter in the discretion of the court and is not shown to have been abused.
The salient question raised in both appeals is whether or not the trial court committed error in dismissing the cause and thereby refusing to permit Ruff and Ready to continue its prosecution in the name of the plaintiff for the purpose of recovering their fee.
A fair appraisal of the record on this point discloses that Lenore Miller employed Ruff and Ready to bring the action in question and that they filed their first amended declaration for that purpose in August, 1936. It was later amended but is shown to have experienced the pains of procedural gestation common to pleadings in suits of this kind until May, 1941, when the motion to dismiss bore an affirmative judgment. The record further discloses that Lenore Miller entered into contract with Ruff and Ready whereby she agreed to pay them a fee of fifty per cent of all sums recovered whether by suit or otherwise and made an assignment to them of such portion of the recovery. The parties to the cause got together secretly, being represented by other counsel and composed their differences on condition that defendant pay plaintiff the sum of $8,500 which was done; hence the stipulation to dismiss the appeal.
Appellee contends that since the evidence shows that the stipulation to dismiss was predicated on a valuable consideration passing to the plaintiff and that there is no showing of...
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