State Ex Rel. L. & L., Inc. Freight Lines v. Barrs

• Decision Date: 23 October 1937
• Citation: 176 So. 756,129 Fla. 668
• Parties: STATE ex rel. L. & L. FREIGHT LINES, Inc. v. BARRS, Judge of Civil Court of Record.
• Court: Florida Supreme Court

176 So. 756

129 Fla. 668

STATE ex rel. L. & L. FREIGHT LINES, Inc. v. BARRS, Judge of Civil Court of Record.

Florida Supreme Court, Division A.

October 23, 1937

Rehearing Denied Nov. 19, 1937.

Error to Circuit Court, Duval County; Miles W. Lewis, Judge.

Proceeding by the State of Florida on the relation of the L. & L Freight Lines, Inc., against the Honorable Burton Barrs, as Judge of the Civil Court of Record in and for Duval County Fla. To review a judgment of the Circuit Court, refusing to grant a rule nisi in prohibition, the relators bring error.

Affirmed.

COUNSEL

Leo P. Kitchen and Dan R. Schwartz, both of Jacksonville, for plaintiff in error.

Evan T Evans and John O. Jackson, both of Jacksonville, for defendant in error.

OPINION

BUFORD Justice.

Writ of error in this case brings for review judgment of the circuit court of Duval county denying rule nisi in prohibition and denying motion to make such rule nisi in prohibition absolute.

The record shows that one Lockwood commenced an action at law in the civil court of record of Duval county, Fla., and on August 31, 1935, filed his declaration naming L. & L. Freight Lines, Inc., defendant; that on November 4, 1935, defendant filed its pleas to the declaration. Issue was joined thereon. On March 9, 1936, at a term of said civil court of record, said cause was tried before a jury which rendered a verdict for the plaintiff therein, and final judgment was entered for the plaintiff; that thereafter, defendant filed its motion for a new trial, which was denied. Writ of error was taken to the judgment; the judgment was reversed by the appellate court; the cause was remanded to the civil court of record of Duval county, with instructions to vacate and set aside said verdict and judgment; and thereafter the said Lockwood filed his petition in the Supreme Court of Florida for writ of certiorari seeking to quash and set aside the order of the circuit court of Duval county, Fla., and on December 11, 1936, the Supreme Court made its order and filed its opinion and judgment denying writ of certiorari and refusing to quash said order of the circuit court. Lockwood v. L. & L. Freight Lines, 126 Fla. 474, 171 So. 236.

Petition for rehearing was filed and denied.

On January 21, 1937, the mandate of this court went down to the civil court of record; that said civil court of record then proceeded to a second trial of said cause on January 22, 1937; the respective parties were present and by their attorneys appeared and a jury was impaneled and sworn according to law to try the issues joined.

Lockwood was sworn as a witness in his own behalf, and, after testifying at length, he attempted through his counsel to introduce into evidence a carbon copy of a certain letter, which was copied in the record and made a part thereof; that the original of said letter was alleged by the plaintiff to be in possession of the defendant. Attorneys for defendant objected to the introduction into evidence of the carbon copy on the ground that the original had not been properly accounted for, and defendant had not been served with notice to produce the original of said letter.

It was contended that Lockwood had given notice to the defendant to produce the letter, copy of which was offered in evidence.

It was then discovered by plaintiff that he had demanded the production of a letter, copy of which was already attached to plaintiff's declaration. Thereupon, plaintiff's attorneys advised the court that the letter demanded by the notice was not the letter which was wanted, and that a mistake had been made; that a consideration of said notice and a careful examination of same, as well as of the copy of said notice served upon defendant's attorneys, showed the mistake to have been made by the plaintiff. The plaintiff's attorneys then stated to the court that the plaintiff could not safely proceed with the trial of the cause, the moved the court to withdraw a juror and declare a mistrial, to which the defendant then and there objected. The defendant moved the court to require plaintiff to enter a nonsuit, or to dismiss the cause. The court ordered a juror withdrawn, and declared a mistrial and continued the cause.

The defendant contended that the action of the court in withdrawing a juror from the panel and declaring a mistrial and thereupon continuing the cause amounted to the entering of an order of involuntary nonsuit, and that the civil court of record then lost jurisdiction of the cause. The practice of withdrawing a juror and...