Scott v. Rosenthal
| Decision Date | 31 July 1961 |
| Docket Number | No. 59-231,59-231 |
| Citation | 132 So.2d 347 |
| Parties | Paul Andrew SCOTT, Appellant, v. Murray ROSENTHAL and Joseph Rosenthal, Appellees. |
| Court | Florida District Court of Appeals |
David Goldman, Miami, for appellant.
Reece & Murray, Miami, for appellees.
Before HORTON and CARROLL, JJ., and BARNS, PAUL D., Associate Judge.
Petition for writ of certiorari is presently pending in the Supreme Court of Florida to this court's judgment of reversal of a summary judgment entered by the circuit court of Dade County, Florida. The views of Associate Judge Barns in this case were expressed by him in a written opinion. 1 Judges Carroll and Horton concurred in the judgment of reversal only.
In an opinion rendered June 21, 1961, the Supreme Court of Florida requested this court to '* * * prepare and adopt an opinion setting forth the theory [and reasoning] upon which it based its per curiam * * * reversal * * *.' Since the views of Associate Judge Barns have been expressed by him in a written opinion, the following are the reasons relied upon by the majority of the court who did not concur in the aforesaid opinion.
The facts, we feel, are fairly stated in the opinion of Associate Judge Barns. The majority of this court are of the view, and so hold, that under the factual situation in this case, there was no splitting of a cause of action, and assuming, arguendo, that it did occur, such defense under the facts here has been waived by the actions of the Rosenthals.
We feel it was incumbent on the Rosenthals, who were parties defendant in both actions, and simultaneously defending these actions, to come forth at the first opportunity after gaining knowledge of their pendency, and seek to abate one or the other of the actions. Having failed so to do, they should now be estopped to urge the abatement of the action after judgment of dismissal in the first action. As an observation, but not necessarily a reason, we wish to point out that the Rosenthals contend that Scott should have intervened or joined in the suit by his collision carrier in the civil court of record. This court judicially knows that the limit of the jurisdiction in the civil court of record is $5,000, whereas Scott filed suit for his personal injuries in the circuit court claiming damages in excess of $5,000. Under such circumstances, it is not clear just how Scott could or would have been permitted to intervene in the carrier's action. Althou...
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Weekes v. Atlantic National Ins. Co., 20245.
...A.L.R.2d 1; see also Chappell v. Boykin, 1960, 41 Ala. App. 137, 127 So.2d 636, cert. den. 271 Ala. 697, 127 So.2d 641; Scott v. Rosenthal, 1961, Fla.App. 132 So.2d 347; Georgia Ry. & Power Co. v. Endsley, supra, n. 14; Shaw v. Chell, supra, n. 12. 16 Shaw v. Chell, supra, n. 12 is such a c......
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Rosenthal v. Scott, 30961
...it based its judgment of reversal. The district court of appeal complied graciously and expeditiously with this request. Scott v. Rosenthal, Fla.App.1961, 132 So.2d 347. The cause was forthwith returned to this Court for further consideration of the defendants' petition for writ of certiora......
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State v. Leveson, 31809
...which has been presented to us. Rosenthal v. Scott, supra; Solomon v. Sanitarians' Registration Board, supra. See also, Scott v. Rosenthal, Fla.App., 132 So.2d 347. Request is respectfully made to the District Court of Appeal, Third District, that it prepare and adopt a majority opinion set......
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Solomon v. Sanitarians' Registration Bd.
...to us. See Rosenthal v. Scott, Fla., 131 So.2d 480; For the subsequent action of the Court of Appeal in that case, see Scott v. Rosenthal, Fla.App., 132 So.2d 347. Accordingly, request is respectfully made to the District Court of Appeal, First District, that it prepare and adopt a majority......