Spiker v. Hester
| Decision Date | 22 April 1931 |
| Citation | 101 Fla. 286,133 So. 872 |
| Parties | SPIKER v. HESTER. |
| Court | Florida Supreme Court |
Error to Circuit Court, Taylor County; Hal W. Adams, Judge.
Action by W. G. Spiker against L. V. Hester. To review an order of nonsuit, plaintiff brings error.
Reversed for proper order of nonsuit.
Syllabus by the Court.
Where the undertakings of the parties to a contract are concurrent and dependent, for plaintiff to put defendant in default, he should have at least offered to comply with the terms of the contract on his part to be performed at the time of a demand on defendant for performance.
Where a nonsuit is taken, the court should not order and adjudge that plaintiff take nothing by his declaration, and that defendant go hence without day, because to do so is in effect a final judgment on the merits for the defendant, which should not be entered on a nonsuit.
In cases at law where a nonsuit is allowed, the form record entry on such nonsuit is that the plaintiff, being solemnly called, came not, neither was his suit further prosecuted whereupon plaintiff suffered a nonsuit.
John F. Harrell, of Live Oak, and T. J. Swanson, of Perry, for plaintiff in error.
Davis & Pepper, of Perry, for defendant in error.
In this case the plaintiff in error failed to establish that he offered to comply with the contract on his part to be performed, at the time, if ever, he demanded a deed or at any other time. Default on the part of the defendant is not shown. The undertakings of the parties were concurrent and dependent, and, for plaintiff to put defendant in default, he should have at least offered to comply with the terms of the contract. See Sanford v. Cloud, 17 Fla. 532; Walker v. Close, 98 Fla. 1103, 125 So. 521, 126 So 289; Peterson v. Howell, 99 Fla. 179, 126 So. 362; Burke v. Wallace, 98 Fla. 604, 124 So. 30; 13 C.J 571.
The judgment appealed from, however, must be reversed because not a proper form of order to be entered when plaintiff elects to take a nonsuit with bill of exceptions under section 4617, Comp. Gen. Laws 1927, section 2907, Rev. Gen. St. 1920. The purported order of nonsuit from which the writ of error is taken in this case is in legal effect a final judgment on the merits for the defendant, which should not have been entered.
The proper form of order to be entered when a nonsuit is taken is not to order and adjudge that plaintiff take nothing by his declaration and that defendant go hence without day, as was done here.
In case...
To continue reading
Request your trial
-
State v. Chillingworth
... ... judgment rendered and entered thereon. Whitaker v ... Wright, 100 Fla. 282, 129 So. 889; Spiker v ... Hester, 101 Fla. 286, 133 So. 872 ... 'Dismissal' ... and 'discontinuance' are synonymous terms in effect ... At common law it ... ...
-
State ex rel. Paluska v. White, 4769
...exhibit. The plaintiffs moved the court for nonsuit, and subsequently a judgment of nonsuit in the form prescribed in Spiker v. Hester, 1931, 101 Fla. 286, 288, 133 So. 872, 135 So. 502, was The plaintiffs instituted another action against the defendants based upon the same alleged cause of......
-
Jones v. General Acc., Fire & Life Assur. Corp., Limited, of Perth, Scotland
...writ of certiorari to the affirming judgment of the circuit court. For a proper form of judgment where nonsuit is allowed, see Spiker v. Hester (Fla.) 133 So. 872; (Fla.) 135 So. 502. The evidence taken in the trial court was duly authenticated to the circuit court by bill of exceptions, an......
-
Gray v. Durkee
... ... Co., 146 Fla. 171, 200 So. 357; Goldring v ... Reid, 60 Fla. 78, 53 So. 503; Jacques v. Wellington Corp., ... 133 Fla. 819, 183 So. 22; Spiker v. Hester, 101 Fla. 286, 133 ... So. 872, 135 So. 502; Seaboard A. L. R. Co. v. Hartline, 84 ... Fla. 133, 92 So. 813 ... BUFORD, C. J., ... ...