J. C. ANDERSON, PLAINTIFF IN ERROR,
v.
PULASKI BROWARD, DEFENDANT IN ERROR
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In this malicious prosecution suit, the Florida Supreme Court reversed a judgment directed against the plaintiff because the trial court erroneously directed a verdict and entered judgment against the plaintiff's wishes, rather than allowing the plaintiff to proceed or seek a voluntary nonsuit. The court also rejected the defendant's argument that the declaration was deficient, holding that such defects could be cured by amendment.
The court held that the trial court erred in directing a verdict and entering judgment against the plaintiff without the plaintiff's consent. While the defendant could have sought a motion for judgment for want of prosecution, the court could not compel the plaintiff to submit to a directed verdict. The court also held that no abuse of discretion occurred in denying the venue application, and that any deficiencies in the declaration could be cured by amendment upon remand.
“even though a trial of such an issue was proper, yet as against the wish of the plaintiffs, the defendant can not prosecute plaintiff's suit”
Establishes the core principle that a defendant cannot force the court to try the plaintiff's case over the plaintiff's objection
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Join FLexlaw to unlock all legal intelligenceJ. C. Anderson was convicted in a criminal prosecution and sentenced to serve time in county jail. He subsequently filed a malicious prosecution suit …
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Maxwell,- J.
This is a suit for malicious prosecution. The plaintiff was convicted upon the-prosecution complained of and sentenced to serve a term of months in the county jail. He filed in this case-an application for change of venue upon the ground that his sentence, incarceration and service in the convict camp of the county had rendered him so odious to the inhabitants of the county that he could not expect to obtain a fair trial there. This application was supported by the affidavits of-six persons that-they believed the fact to be as stated. .The application-was denied by the court, and this ruling is assigned as error. We find in it no abuse of .the discretion reposed in the trial court.
After the denial of this motion the plaintiff refused to prosecute the case, and against his objection the court upon motion of the defendant impanelled a jury, directed a verdict and entered judgment for the defendant. This was error. As said by this court in Wade v. Doyle, 17 Fla. 522, text 531, “even though a trial of such an issue was proper, yet as against the wish of the plaintiffs, the defendant can'not prosecute plaintiff’s suit. If the plaintiff’s saw proper to abandon their cause at this stage of the proceedings,‘the defendant’s remedy was a motion for judgment for want of prosecution. While the plaintiff can not be compelled to submit to a nonsuit (Rule 51 Circuit Court Rules,) yet if he voluntarily declines to prosecute his suit and refuses so to do, the court can and should dispose of it in the manner stated.”
But it is urged by defendant in error that the judgment should be sustained because the declaration does not state a cause of action. The declaration was demurred to in the court below and the demurrer was overruled. Assume that this ruling ivas erroneous. Had the declaration been held insufficient by the lower court, its defects might have been cured by amendment. Had this court, upon writ of error by the defendant, reversed the lower court in overruling the demurrer, the case would have been remanded with opportunity in the lower court to amend. But were we now to affirm, for the reason that his declaration is inartificial, a judgment erroneously entered against*the plaintiff upon other grounds, the effect would be to conclude him without opportunity to amend, when the court in which alone he could amend had held it to be unnecessary. This is not a proper practice and will not he adopted.
The judgment of the lower court is reversed and the cause remanded for further proceedings in accordance with law.
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David L. Shannon and Helen v. Shannon, 105 So. 2d 16 (Fla. 2d DCA 1958)…om the record that the lower court never reached a consideration of the merits of appellants’ claim as to appellees, such final judgment cannot in these circumstances be upheld as a “just” disposition under Rule 1.18, supra. See Anderson v. Broward, 45 Fla. 160, 34 So. 897, and Weaver v. Marcus, 4 Cir., 1948, 165 F. 2d 862, 175 A.L.R. 1305. Also see Sedell v. Sedell, Fla. App.1958, 100 So. 2d 639, and 10 Fla.Jur., Dismissals, Discontinuance and Nonsuit, Secs. 9, 10 and 23, pp. 370-373 and 385. We think th…
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Maloy v. Bristow, 138 So. 2d 801 (Fla. 3d DCA 1962)…06 Fla. 323, 143 So. 346, 347, the Supreme Court said: “It is an inherent right of the court, and therefore one existing independently of the statute, to dismiss a suit for a failure to prosecute it with due diligence.” See also Anderson v. Broward, 45 Fla. 160, 34 So. 897; Welgoss v. End, Fla.App.1959, 112 So. 2d 390. Plaintiff had been given the opportunity to obtain an attorney to assist her, and when she chose to represent herself and proceed without coun [*802] sel the chancellor was careful to inform…
Authorities Cited
- Matilda Wade v. Doyle, 17 Fla. 522 (Fla. 1880)