HENRY N. CLARKE, APPELLANT,
v.
PERRY G. WALL, APPELLEE
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The Florida Supreme Court held that a plaintiff has the right to discontinue their action even after a defendant has filed a plea of set-off. This decision affirmed a prior ruling on the same issue.
Yes, a plaintiff retains the right to discontinue their action even after a defendant has filed a plea of set-off.
“This case is brought up by appeal from the Circuit Court of Hernando County, and tbe only question which has been submitted for our decision is as to the right of a plaintiff to discontinue his action after a plea of set-off has been filed by the defendant.”
Identifies the core legal question presented to the court.
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Join FLexlaw to unlock all legal intelligenceThe plaintiff in the Circuit Court sought to discontinue their action after the defendant filed a plea of set-off. The trial court refused to permit t…
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DuPONT, J.,
delivered the opinion of the Court:
' This case is brought up by appeal from the Circuit Court of Hernando County, and tbe only question which has been submitted for our decision is as to the right of a plaintiff to discontinue his action after a plea of set-off has been filed by the defendant.
This question has already been settled, by the adjudication in the case of Buffington vs. Quackenboss, (5 Florida Reps., 196,) and we see no good reason for disturbing that decision. In the case referred. to, the defendant in the Court below pleaded, by way of set-off, an open account which exceeded in amount the plaintiff’s demand. At the trial term, the Court, upon motion of the plaintiff, ordered the cause to be dismissed, to which the counsel for the defendant excepted, and assigned the same as error. The Supreme Court sustained the judgment of the Court below, and thereby affirmed the right of the plaintiff to discontinue his action, notwithstanding a plea of set-off had been filed.
In the case now before us, the error assigned is the refusal to permit the plaintiff to take a non-suit before the cause had been submitted to the jury, and thus it will be¡' seen that the points made in the two cases are identical.
Let the judgment be reversed, with costs, and the cause remanded for such further proceedings as may not be inconsistent with this opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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W. Coast Fruit Co. v. Hackney, 98 Fla. 382 (Fla. 1929)…mp. Gen. Laws. The rule is well settled in this jurisdiction that the presence of a plea of set-off does not deprive the plaintiff of his [*384] right to táke a non-suit before the jury retires. Buffinton v. Quackenboss, 5 Fla. 196; Clarke v. Wall, 5 Fla. 476; National Broadway Bank v. Lesley, 31 Fla. 56, 12 So. R. 525; Haile v. Mason Hotel, 71 Fla. 469, 71 So. R. 540. The reasons for this rule are well started in the case first above cited. The error of the court in declining to allow the plaintiff to…
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Tomasello v. Walton, 100 Fla. 710 (Fla. 1930)…of the defendant would be by motion in the court below, to set aside the discontinuance, on the refusal of the plaintiff to comply with the terms of the order or the rule of the court.” This rule was approved in 1854 in the case of Clarke v. Wall, 5 Fla. 476. In the case of West Coast Fruit Company v. Hackney, decided by this Court August 1st, 1929, 123 So. R. 758, the Court say: < (rj^g ruje wejj gelled in this jurisdiction that the presence of a plea of set-off does not deprive the plaintiff of his…1 / 3
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Johns v. Puca, 143 So. 2d 568 (Fla. 2d DCA 1962)…tiff thereupon took an involuntary non-suit and moved the Court to dismiss the counterclaim, contending that it should fall with the non-suit under the doctrine of the early Florida cases of Buffington v. Quackenboss, 5 Fla. 196; and Clarke v. Wall, 5 Fla. 476. The Court, over the objection of the defendant-counterclaimant, decided that the appropriate procedure would be to dismiss the counterclaim without prejudice. Counsel for the parties have been unable to cite, and we have been unable to find, any F…