Peaslee v. Michalski, No. 4955

CourtCourt of Appeal of Florida (US)
Writing for the CourtBARNS, PAUL D.; SMITH, C. J., and SHANNON
Citation167 So.2d 242
PartiesWilliam A. PEASLEE et al., Petitioners, v. Charles MICHALSKI, Respondent.
Docket NumberNo. 4955
Decision Date26 August 1964

Page 242

167 So.2d 242
William A. PEASLEE et al., Petitioners,
v.
Charles MICHALSKI, Respondent.
No. 4955.
District Court of Appeal of Florida, Second District.
Aug. 26, 1964.
Rehearing Denied Sept. 23, 1964.

Page 243

Mann, Harrison, Mann & Rowe, St. Petersburg, for petitioners.

Wilder & White, Clearwater, for respondent.

BARNS, PAUL D., Associate Judge.

Petitioners seek a common law writ of certiorari to review an order made on the eve of trial granting plaintiff-respondent's motion or election to take a voluntary nonsuit. No final judgment appears to have been entered or applied for. We fail to find grounds for certiorari and the petition is denied since petitioners have an adequate remedy by appeal after entry of a final judgment.

The order sought to be reviewed on certiorari is based on the announcement of plaintiff-respondent's attorney stating in open court, when the case was called for trial, 'The plaintiff at this time elects to take a voluntary nonsuit in this matter.' Thereupon, the defendants (petitioners here) moved the court for 'an order of dismissal with prejudice.' The trial judge at that time granted plaintiff a nonsuit and denied defendants' motion. A formal order to the same effect was later entered reserving the taxation of cost against plaintiff for later determination as to amount; the material portion of which formal order, making of record the action at trial, provided:

'Ordered and adjudged that the defendants' motion for dismissal with prejudice be, and the same hereby is, denied and plaintiff's motion for voluntary nonsuit pursuant to Section 54.09, Florida Statutes, be and the same hereby is, granted; * * *.'

An order or ruling granting or allowing a nonsuit is interlocutory and not

Page 244

a final judgment and such nonsuit is not reviewable on appeal in the absence of, and appeal from, a final judgment of dismissal. State ex rel. L & L Freight Lines v. Barrs, 129 Fla. 668, 176 So. 756; Whitaker v. Wright, 100 Fla. 282, 129 So. 889; Downing v. Weaver-Laughridge Lumber Co., 94 Fla.1096, 114 So. 666; Goldring v. Reid, 60 Fla. 78, 53 So. 503; Mizell Live 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 827.

The foregoing cases clearly show that an appropriate and regular way to conclude a case nonsuited is to procure the entry of a final judgment from which judgment an appeal may be taken 'as a matter of right,' Section 5(3) of Article V of the Constitution, F.S.A., and the right to appeal does not depend on whether the nonsuit was voluntary or involuntary or whether the granting of the nonsuit was proper or improper. However, these factors may influence the success of the appeal when the...

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5 practice notes
  • Thoman v. Ashley, No. 4548
    • United States
    • Court of Appeal of Florida (US)
    • December 18, 1964
    ...31 So.2d 867. The appropriate way to conclude a case nonsuited is to procure a final judgment. Peaslee v. Michalski, Fla.App.,App.1964, 167 So.2d 242. The plea of res judicata was properly Certiorari is denied. SHANNON, J., concurs. WHITE, J., dissents with opinion. WHITE, Judge (dissenting......
  • Donnell v. Industrial Fire and Cas. Co., No. 78-2380
    • United States
    • Court of Appeal of Florida (US)
    • January 22, 1980
    ...in the first one. Thoman v. Ashley, 170 So.2d 332 (Fla. 2d DCA 1964), cert. denied, 177 So.2d 205 (Fla.1965); Peaslee v. Michalski, 167 So.2d 242 (Fla. 2d DCA 1964). And it is settled by a veritable host of Florida authorities that an order, like this one, which merely grants a motion and d......
  • Gregg v. Gray, No. 5167
    • United States
    • Court of Appeal of Florida (US)
    • May 28, 1965
    ...was only a ruling at trial and the action was still pending until the order of dismissal was entered. Peaslee v. Michalski, Fla.App.1964, 167 So.2d 242. As stated in 1 Freeman on Judgments (5th Ed.), p. 40, 'But as indicated in the preceding section, to be final for purposes of appeal a non......
  • Bailey v. Allstate Ins. Co., No. 68--333
    • United States
    • Court of Appeal of Florida (US)
    • February 5, 1969
    ...101 Fla. 792, 135 So. 561; Renard v. Kirkeby Hotels, Inc. (Fla.App.3d 1958), 99 So.2d 719; Peaslee v. Michalski (Fla.App.2d 1964), 167 So.2d 242; and Chastain v. Embry, id. See, also, Strazzulla et al. v. Hinson (Fla.App.2d 1959), 113 So.2d 419; and Goldfarb v. Bronston et al. (1944), 154 F......
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5 cases
  • Thoman v. Ashley, No. 4548
    • United States
    • Court of Appeal of Florida (US)
    • December 18, 1964
    ...31 So.2d 867. The appropriate way to conclude a case nonsuited is to procure a final judgment. Peaslee v. Michalski, Fla.App.,App.1964, 167 So.2d 242. The plea of res judicata was properly Certiorari is denied. SHANNON, J., concurs. WHITE, J., dissents with opinion. WHITE, Judge (dissenting......
  • Donnell v. Industrial Fire and Cas. Co., No. 78-2380
    • United States
    • Court of Appeal of Florida (US)
    • January 22, 1980
    ...in the first one. Thoman v. Ashley, 170 So.2d 332 (Fla. 2d DCA 1964), cert. denied, 177 So.2d 205 (Fla.1965); Peaslee v. Michalski, 167 So.2d 242 (Fla. 2d DCA 1964). And it is settled by a veritable host of Florida authorities that an order, like this one, which merely grants a motion and d......
  • Gregg v. Gray, No. 5167
    • United States
    • Court of Appeal of Florida (US)
    • May 28, 1965
    ...was only a ruling at trial and the action was still pending until the order of dismissal was entered. Peaslee v. Michalski, Fla.App.1964, 167 So.2d 242. As stated in 1 Freeman on Judgments (5th Ed.), p. 40, 'But as indicated in the preceding section, to be final for purposes of appeal a non......
  • Bailey v. Allstate Ins. Co., No. 68--333
    • United States
    • Court of Appeal of Florida (US)
    • February 5, 1969
    ...101 Fla. 792, 135 So. 561; Renard v. Kirkeby Hotels, Inc. (Fla.App.3d 1958), 99 So.2d 719; Peaslee v. Michalski (Fla.App.2d 1964), 167 So.2d 242; and Chastain v. Embry, id. See, also, Strazzulla et al. v. Hinson (Fla.App.2d 1959), 113 So.2d 419; and Goldfarb v. Bronston et al. (1944), 154 F......
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