State ex rel. Paluska v. White, No. 4769

CourtCourt of Appeal of Florida (US)
Writing for the CourtSMITH
Citation162 So.2d 697
PartiesThe STATE of Florida ex rel. Earl William PALUSKA, Jr., a minor, by and through his next friend, natural guardian and father, Earl W. Paluska, and Earl W. Paluska, individually, Petitioners, v. The Honorable Jos. S. WHITE, Judge of the Circuit Court, and the Circuit Court of the Fifteenth Judicial Circuit of Florida, individually and collectively, Respondents.
Docket NumberNo. 4769
Decision Date15 April 1964

Page 697

162 So.2d 697
The STATE of Florida ex rel. Earl William PALUSKA, Jr., a minor, by and through his next friend, natural guardian and father, Earl W. Paluska, and Earl W. Paluska, individually, Petitioners,
v.
The Honorable Jos. S. WHITE, Judge of the Circuit Court, and the Circuit Court of the Fifteenth Judicial Circuit of Florida, individually and collectively, Respondents.
No. 4769.
District Court of Appeal of Florida, Second District.
April 15, 1964.

Page 698

H. L. Cooper, Jr., of O'Connell & Cooper, West Palm Beach, for petitioners.

Westley W. Silvian, of Burdick & Silvian, West Palm Beach, for respondents.

SMITH, Chief Judge.

The petitioners in this original proceeding for a writ of prohibition are the defendants in an action at law presently pending in the respondent-court. They seek an order from this court prohibiting the trial of the case on the ground that the court below lacks jurisdiction of the action.

The essential facts are not disputed. The plaintiffs brought an action against the petitioners in the respondent-court seeking damages sustained in an automobile accident. In the course of the jury trial the plaintiffs called a witness and by him endeavored to identify a certain documentary exhibit. The court sustained the petitioners' objections both to the testimony of the witness and the 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 entered.

The plaintiffs instituted another action against the defendants based upon the same alleged cause of action. With other pleas

Page 699

the defendants filed a plea alleging the prior action and its termination by judgment of nonsuit as a defense of res judicata, followed by the defendants' motion for summary judgment based on the affirmative defense of res judicata. The court denied the motion for summary judgment expressly holding that the practice of taking nonsuits recognized by section 54.09, Florida Statutes, F.S.A., had not been abolished by the 1962 amendments to Rule 1.35 of the Florida Rules of Civil Procedure, 30 F.S.A.

Prohibition must be denied without passing upon the basic question sought to be raised. The writ of prohibition is that process by which a superior court prevents an inferior court from exceeding its jurisdiction or usurping a jurisdiction with which it has not been vested by law. It issues only when the...

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13 practice notes
  • Thoman v. Ashley, No. 4548
    • United States
    • Court of Appeal of Florida (US)
    • December 18, 1964
    ...a defendant may not obtain review of an order on nonsuit by resort to prohibition. State ex rel. Paluska v. White, Fla.App.,App.1964, 162 So.2d 697. In the present case, the immediate matter sought to be reviewed is an order striking the defense of res judicata, which defense happened to be......
  • Pottawattamie County Dept. of Social Services v. Landau, No. 55732
    • United States
    • United States State Supreme Court of Iowa
    • September 19, 1973
    ...(mandamus issued to entertain plea); Goodman Bros. v. Superior Court, 51 Cal.App.2d 297, 124 P.2d 644, 648--649 (1942); State v. White, 162 So.2d 697, 699 (Fla.App.1964); Garcia v. Superior Court, 78 Ariz. 351, 280 P.2d 270 (1955); 73 C.J.S. Prohibition § 11, p. 44; 63 Am.Jur.2d, Prohibitio......
  • Abdo v. Abdo, Case No. 2D20-990, 2D20-1045
    • United States
    • Court of Appeal of Florida (US)
    • January 8, 2021
    ...(Fla. 3d DCA 1971) ; King v. L & L Investors, Inc., 136 So. 2d 671, 672-74 (Fla. 3d DCA 1962) ; cf. State ex rel. Paluska v. White, 162 So. 2d 697, 699 (Fla. 2d DCA 1964) (noting that prohibition would lie in a "situation where a lower court, following an appeal, entertains proceed......
  • Abdo v. Abdo, Case No. 2D20-990
    • United States
    • Court of Appeal of Florida (US)
    • January 8, 2021
    ...266 (Fla. 3d DCA 1971); King v. L & L Investors, Inc., 136 So. 2d 671, 672-74 (Fla. 3d DCA 1962); cf. State ex rel. Paluska v. White, 162 So. 2d 697, 699 (Fla. 2d DCA 1964) (noting that prohibition would lie in a "situation where a lowerPage 4 court, following an appeal, entertains......
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13 cases
  • Thoman v. Ashley, No. 4548
    • United States
    • Court of Appeal of Florida (US)
    • December 18, 1964
    ...a defendant may not obtain review of an order on nonsuit by resort to prohibition. State ex rel. Paluska v. White, Fla.App.,App.1964, 162 So.2d 697. In the present case, the immediate matter sought to be reviewed is an order striking the defense of res judicata, which defense happened to be......
  • Pottawattamie County Dept. of Social Services v. Landau, No. 55732
    • United States
    • United States State Supreme Court of Iowa
    • September 19, 1973
    ...(mandamus issued to entertain plea); Goodman Bros. v. Superior Court, 51 Cal.App.2d 297, 124 P.2d 644, 648--649 (1942); State v. White, 162 So.2d 697, 699 (Fla.App.1964); Garcia v. Superior Court, 78 Ariz. 351, 280 P.2d 270 (1955); 73 C.J.S. Prohibition § 11, p. 44; 63 Am.Jur.2d, Prohibitio......
  • Abdo v. Abdo, Case No. 2D20-990, 2D20-1045
    • United States
    • Court of Appeal of Florida (US)
    • January 8, 2021
    ...(Fla. 3d DCA 1971) ; King v. L & L Investors, Inc., 136 So. 2d 671, 672-74 (Fla. 3d DCA 1962) ; cf. State ex rel. Paluska v. White, 162 So. 2d 697, 699 (Fla. 2d DCA 1964) (noting that prohibition would lie in a "situation where a lower court, following an appeal, entertains proceed......
  • Abdo v. Abdo, Case No. 2D20-990
    • United States
    • Court of Appeal of Florida (US)
    • January 8, 2021
    ...266 (Fla. 3d DCA 1971); King v. L & L Investors, Inc., 136 So. 2d 671, 672-74 (Fla. 3d DCA 1962); cf. State ex rel. Paluska v. White, 162 So. 2d 697, 699 (Fla. 2d DCA 1964) (noting that prohibition would lie in a "situation where a lowerPage 4 court, following an appeal, entertains......
  • Request a trial to view additional results

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