Spiker v. Hester

• Citation: 135 So. 502,101 Fla. 288
• Parties: SPIKER v. HESTER.
• Decision Date: 22 April 1931
• Court: United States State Supreme Court of Florida

135 So. 502

101 Fla. 288

SPIKER v. HESTER.

Florida Supreme Court, Division B.

April 22, 1931

Rehearing Denied June 2, 1931.

Error to Circuit Court, Taylor County; Hal W. Adams, Judge.

On motion for rehearing. Rehearing denied and opinion modified. For former opinion, see 133 So. 872.

COUNSEL

John F. Harrell, of Live Oak, and T. J. Swanson, of Perry, for plaintiff in error.

Davis & Pepper, of Perry, for defendant in error.

OPINION

PER CURIAM.

Upon further consideration, it is ordered that the opinion in the above case (133 So. 872) be amended so that the last four paragraphs thereof will read as follows:

'The judgment appealed from, however, must be reversed for a proper order to be entered when plaintiff elects to take a non suit with bill of exceptions under section 4617, Comp. Gen. Laws 1927, section 2907, Rev. Gen. St. 1920. The purported order of non suit from which the writ of error is taken in this case is in legal form a final judgment for the defendant, which should not have been entered.

'The proper form of order to be entered when a non suit is taken under the statute is not merely to order and adjudge that plaintiff take nothing by his declaration and that defendant go hence without day, as was done here.

'In cases where a non suit is allowed as a basis for a writ of error, a proper form of entry of judgment on such non suit would be 'that the plaintiff being solemnly called came not, neither was his suit further prosecuted, whereupon plaintiff suffered a non suit, and it is therefore considered by the Court that the plaintiff take nothing by his writ and that the defendant go hence without day and recover of the plaintiff his costs, etc.' See Andrews Stephens on Pleading (1st Ed.) page 195. Hall v. Patterson, 45 Fla. 354, 33 So. 982; Mizell Live Stock Company v. McCaskill, 57 Fla. 118, 49 So. 501; Goldring v. Reid, 60 Fla. 78, 53 So. 503.

'Reversed for proper order of non suit at costs of plaintiff in error against whom the judgment is otherwise affirmed.'

Rehearing denied.

BUFORD, C.J., and WHITFIELD, ELLIS, TERRELL, BROWN, and DAVIS, JJ., concur.