Peavy-Wilson Lumber Co. v. Baker

CourtUnited States State Supreme Court of Florida
Writing for the CourtAuthor: Thomas
PartiesPEAVY-WILSON LUMBER CO. v. BAKER.
Decision Date21 October 1941

4 So.2d 333

148 Fla. 296

PEAVY-WILSON LUMBER CO.
v.
BAKER.

Florida Supreme Court

October 21, 1941


Petition for Rehearing Withdrawn Nov. 5, 1941.

[148 Fla. 297] Ellis F. Davis, of Kissimmee, and Maguire, Voorhis & Wells, of Orlando, for plaintiff in error.

George P. Garrett, of Orlando, and Lawrence Rogers, of Kissimmee, for defendant in error.

THOMAS, Justice.

The reader should refer to the reports for the history of this litigation, this being its fifth appearance here, twice upon writ of error (see Baker v. Peavy-Wilson Lumber Company, 140 Fla. 791, 192 So. 193, Id., 145 Fla. 116, 199 So. 323), once upon application for writ of error coram nobis (Baker v. peavy-Wilson Lumber Company, Fla., 200 So. 528) and once upon petition for writ of mandamus. We shall in the course of this decision give only such part of the former record as is necessary to a determination of the writ of error presently under consideration.

It will be seen that this court formerly held, on the first occasion, that there was no error on the part of the trial court in disallowing the defendant's 'plea as to presumption of the death of plaintiff's husband,' one of the apparent reasons for granting the new trial. The capacity of the mother to sue for injury resulting from the loss of a son was recognized in circumstances where the father had deserted the family and had remained absent for a period of fourteen years. It was said that no abuse of discretion occurred in granting a new trial, the judge of the lower court having the conviction that justice demanded it and [148 Fla. 298] the right was reserved to him to reverse his ruling if, 'in the light [4 So.2d 334] of this [the supreme court's] opinion' he concluded that a new trial was not justified.

The court adhered to the original order granting the motion and the case was again submitted to the jury with the result that a verdict was found for the plaintiff.

Meanwhile a plea had been interposed before the second trial alleging that the father lived. Within the time allowed by law, motion for new trial was again made, and before the ruling on it, but after the time for filing an original motion had elapsed, an amendment was offered setting out that defendant could produce evidence establishing the existence of the father. After hearing the evidence lately found by the defendant the court granted the motion upon the ground presented by the amendment, as we interpret the record, which we, in the second appeal, decided to have been offered too late to be of any effect. As a consequence the order was reversed with directions to enter a judgment for the plaintiff 'unless motion in arrest of judgment or for judgment non obstante veredicto should be made and prevail.' Final judgment was thereupon entered in favor of the plaintiff and it bore the recital that a motion in arrest of judgment and one for judgment non obstante veredicto had been denied.

The language we have italicized has given rise to the question now confronting us.

It was our clear mandate that judgment be entered for the plaintiff, as was done, and it was equally certain that there should be one exception, namely, a favorable ruling by the trial court on a motion in arrest or for judgment notwithstanding the verdict. [148 Fla. 299] To state it somewhat differently the errors, which plaintiff in error insisted were present in the record of the last trial had been reviewed and disposed of by us and nothing remains for our consideration in the present appeal except those matters which were reachable by the motions presented under our opinion and denied by the trial court.

The phraseology which we have stressed was not any indication of our views with reference to this particular controversy but was taken almost verbatim from the...

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1 practice notes
  • Hilkmeyer v. Latin Am. Air Cargo Expediters, Inc.
    • United States
    • United States State Supreme Court of Florida
    • April 24, 1957
    ...in the trial court, but could not bring up testimony for the trial judge's consideration. Peavy-Wilson Lumber Co. v. Baker, 1941, 148 Fla. 296, 4 So.2d 333; Tolliver v. Loftin, supra; Okeechobee Co., for Use and Benefit of Hamrick v. Norton, 1942, 149 Fla. 651, 6 So.2d 632. Cf. Newton v. Gl......
1 cases
  • Hilkmeyer v. Latin Am. Air Cargo Expediters, Inc.
    • United States
    • United States State Supreme Court of Florida
    • April 24, 1957
    ...in the trial court, but could not bring up testimony for the trial judge's consideration. Peavy-Wilson Lumber Co. v. Baker, 1941, 148 Fla. 296, 4 So.2d 333; Tolliver v. Loftin, supra; Okeechobee Co., for Use and Benefit of Hamrick v. Norton, 1942, 149 Fla. 651, 6 So.2d 632. Cf. Newton v. Gl......

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