National Broadway Bank v. Lesley

CourtUnited States State Supreme Court of Florida
Writing for the CourtMABRY, J.
Citation31 Fla. 56,12 So. 525
Decision Date13 February 1893
PartiesNATIONAL BROADWAY BANK OF CITY OF NEW YORK v. LESLEY.

12 So. 525

31 Fla. 56

NATIONAL BROADWAY BANK OF CITY OF NEW YORK
v.

LESLEY.

Florida Supreme Court

February 13, 1893


Appeal from circuit Court, Hillsborough county; G. A. Hanson, Judge.

Action by the National Broadway Bank of City of New York against John T. Lesley on a promissory note. Plaintiff's motion for nonsuit was denied, and judgment on a verdict entered for defendant, and plaintiff appeals. Judgment reversed.

Syllabus by the Court

SYLLABUS

By the common law, as modified by the statute of 2 Hen. IV. c. 7, a plaintiff had the right to a voluntary nonsuit at any time before verdict rendered, but under section 103, p. 835, McClel. Dig., the plaintiff will be barred of such right unless he avail himself of it before the jury retire from the bar. If the plaintiff apply for nonsuit before the jury retire from the bar, it will be error to refuse it.

COUNSEL [12 So. 526]

[31 Fla. 56] Barron Phillips, for appellant.

[31 Fla. 57] Macfarlane & Pettingill, for appellee.

OPINION

MABRY, J.

The appellant, the National Broadway Bank of the City of New York, a corporation, sued John T. Lesley on a promissory note executed by him to the Apalachicola Lumber Company, and alleged to have been indorsed before maturity by said company to appellant. Pleas were filed, upon which issues were joined, and the record shows a regular trial thereon before a jury, resulting in a verdict and judgment for the defendant below.

After the evidence on both sides had been closed, and the jury charged, but before they retired from the bar, the plaintiff below moved the court for a nonsuit, which was denied, and this ruling of the court was duly excepted to.

There are two kinds of nonsuits mentioned in legal proceedings; one is voluntary, and the other involuntary. The rule of practice arising in the case before us relates solely to a voluntary nonsuit, and nothing need be said about the practice in cases of involuntary nonsuits.

We remark, further, that the pleas in the present case involve no question of set-off, and the single point presented is, has a plaintiff the right to a voluntary nonsuit, and, if so, at what stage of the proceedings can he avail himself of that right?

At common law, before the statute of 2 Hen. IV. c. 7, a plaintiff had a right to be nonsuited at [31 Fla. 58] any stage of the proceedings he might prefer, and this right continued to the last moment of the trial, even till after verdict rendered, or, where...

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12 practice notes
  • Thoman v. Ashley, No. 4548
    • United States
    • Court of Appeal of Florida (US)
    • December 18, 1964
    ...7, the right to nonsuit after verdict was eliminated. National Broadway Bank of City of New York v. Lesley, 1893, 31 Fla.App., 56, 58, 12 So. 525. This, absent effective change by rule of the Supreme Court, would indicate the current status of voluntary nonsuit in Florida 5 inasmuch as the ......
  • Hartquist v. Tamiami Trail Tours, Inc.
    • United States
    • United States State Supreme Court of Florida
    • July 18, 1939
    ...an absolute right to take a nonsuit, dismissal or discontinuance within the time provided in the statute. National Broadway Bank v. Lesley, 31 Fla. 56, 12 So. 525; Haile v. Mason Hotel & Inv. Co., 71 Fla. 469, 71 So. 540; West Coast Fruit Co. v. Hackney, 98 Fla. 382, 123 So. 758; Pitt v. Ab......
  • Dobson v. Crews, No. E-202
    • United States
    • Court of Appeal of Florida (US)
    • April 7, 1964
    ...to a nonsuit was taken away after verdict, but existed at all times before verdict. (National Broadway Bank of City of New York v. Lesley, 31 Fla. 56, 12 So. 525). This was the status of the common law rule when our statute (59.09, F.S.), was enacted in 1828, and which is found at page 835,......
  • Tomasello v. Walton
    • United States
    • United States State Supreme Court of Florida
    • August 29, 1930
    ...a nonsuit before the jury retires. Buffington v. Quackenboss, 5 Fla. 196; Clarke v. Wall, 5 Fla. 476; National Broadway Bank v. Lesley, 31 Fla. 56, 12 So. 525; Haile v. Mason Hotel & Investment Co., 71 Fla. 469, 71 So. 540. The reasons for this rule are well stated in the case first above c......
  • Request a trial to view additional results
12 cases
  • Thoman v. Ashley, No. 4548
    • United States
    • Court of Appeal of Florida (US)
    • December 18, 1964
    ...7, the right to nonsuit after verdict was eliminated. National Broadway Bank of City of New York v. Lesley, 1893, 31 Fla.App., 56, 58, 12 So. 525. This, absent effective change by rule of the Supreme Court, would indicate the current status of voluntary nonsuit in Florida 5 inasmuch as the ......
  • Hartquist v. Tamiami Trail Tours, Inc.
    • United States
    • United States State Supreme Court of Florida
    • July 18, 1939
    ...an absolute right to take a nonsuit, dismissal or discontinuance within the time provided in the statute. National Broadway Bank v. Lesley, 31 Fla. 56, 12 So. 525; Haile v. Mason Hotel & Inv. Co., 71 Fla. 469, 71 So. 540; West Coast Fruit Co. v. Hackney, 98 Fla. 382, 123 So. 758; Pitt v. Ab......
  • Dobson v. Crews, No. E-202
    • United States
    • Court of Appeal of Florida (US)
    • April 7, 1964
    ...to a nonsuit was taken away after verdict, but existed at all times before verdict. (National Broadway Bank of City of New York v. Lesley, 31 Fla. 56, 12 So. 525). This was the status of the common law rule when our statute (59.09, F.S.), was enacted in 1828, and which is found at page 835,......
  • Tomasello v. Walton
    • United States
    • United States State Supreme Court of Florida
    • August 29, 1930
    ...a nonsuit before the jury retires. Buffington v. Quackenboss, 5 Fla. 196; Clarke v. Wall, 5 Fla. 476; National Broadway Bank v. Lesley, 31 Fla. 56, 12 So. 525; Haile v. Mason Hotel & Investment Co., 71 Fla. 469, 71 So. 540. The reasons for this rule are well stated in the case first above c......
  • Request a trial to view additional results

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