Peaslee v. Michalski, 4955

• Decision Date: 26 August 1964
• Docket Number: No. 4955,4955
• Citation: 167 So.2d 242
• Parties: William A. PEASLEE et al., Petitioners, v. Charles MICHALSKI, Respondent.
• Court: Florida District Court of Appeals

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.

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 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 appeal is determined on its merits.

6 Encyclopedia of Forms, 878, citing an Alabama case, states that a proper form of a final judgment by reason of nonsuit is:

'This day came the parties by their attorneys, and the plaintiffs voluntarily suffered a nonsuit. It is therefore considered by the Court, that the defendants go hence, and recover of the plaintiffs their costs in this behalf expended.'

The classical operative words of a final judgment for the defendant at common law were that the 'plaintiff take nothing by his writ' and that the 'defendant go hence without day;' dismissals of actions at law were not then in use, as they are today. A mere nonsuit at trial is not a final judgment; and until one is entered, the case is still pending.

The practice of plaintiffs 'suffering' a nonsuit is derived from the ancient trial practice in actions at law when not in replevin. It was unknown to the equity practice, not even in the trial of a feigned issue in equity before a jury.

As stated by Blackstone's Commentaries (11th Ed. 1971), 'from the time of the defendant's appearance in obedience to the King's writ, it is necessary that both the parties be kept or continued in Court from day to day, till the final determination of the suit. For the Court can determine nothing, unless in the presence of both the parties, in person or by their attorneys, or upon the default of one of them, after his original appearance, at a time prefixed for his appearance in court again.' III Blackstone's, p. 315-316. Blackstone further states that the practice at trial was that before the jury verdict could be received by the court 'the plaintiff is bound to appear in the court, by himself, attorney, or counsel, * * * and if the plaintiff does not...