COMMERCIAL CREDIT CORPORATION, A CORPORATION UNDER THE LAWS OF THE STATE OF NEW YORK, PLAINTIFF IN ERROR,
v.
C. A. BOSWELL, DEFENDANT IN ERROR
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Commercial Credit Corporation sought to enforce a promissory note against C. A. Boswell, who pleaded that a prior dismissal of the same action for want of prosecution barred the new suit. The Florida Supreme Court reversed the lower court's judgment, holding that a dismissal for want of prosecution does not constitute res adjudicata and therefore cannot bar a subsequent suit on the same cause of action.
A dismissal of an action for want of prosecution, not involving the merits, does not constitute res adjudicata and cannot be pleaded in bar of a subsequent suit on the same subject matter. While such a dismissal is a final disposition of the pending cause, it does not bar relitigation of the underlying claim.
“a dismissal of an action at law not involving the merits is not a bar to a subsequent action and the same rule applies also to a judgment of non suit or a nolle prosequi”
Establishes the core holding that dismissals for want of prosecution do not bar subsequent suits on the same cause of action
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Join FLexlaw to unlock all legal intelligenceCommercial Credit Corporation brought suit to enforce a promissory note against C. A. Boswell. A prior suit on the same note had been filed, issues we…
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In a suit of law brought to enforce a promissory note, the defendant in the case filed two pleas which were to the effect that plaintiff ought not to have or maintain its action, because the plaintiff had theretofore brought a suit on the same note; that in such former suit issues had been made up for trial, but that the case had been disposed of by an order entered by the trial judge dismissing the pending cause for want of prosecution. Plaintiff demurred to the pleas but the demurrer was overruled. Thereafter upon trial of the issues presented by them, there was a directed verdict in defendant’s favor. From the judgment consequent' on the directed verdict, this writ of error was taken by the plaintiff.
The plaintiff’s demurrer to defendant’s pleas was overruled by the trial judge on the theory that after a case at law has been instituted, and has become at issue, that a dismissal of the case' for want of prosecution is such a final determination of the controversy, as to be a bar to a subsequent suit on the same cause of action. In other words the Circuit Judge held by his ruling on plaintiff’s demurrer to defendant’s pleas, that a dismissal of an action at law for want of prosecution became res adjudicata of the controversy, and therefore could be pleaded in bar of a subsequent suit upon the same subject matter.
We find the proposition relied upon as authority to support the ruling below, to have been recently settled to the. contrary by what was declared by this Court in State ex rel. Croker v. Chillingworth, 106 Fla. 323, 143 Sou. Rep. 346.
In the case just cited this Court said: “It is an inherent _ right of the Court, and therefore one existing independently of the statute, to dismiss a suit for failure to prosecute it with due diligence * * *. While a judgment dismissing an *215action at law not involving the merits is not a bar to a subsequent action and the same rule applies also to a judgment of non suit or a nolle prosequi, such judgment is nevertheless a sufficient disposition of the cause pending to deprive the court of jurisdiction to reinstate it after the expiration of the term of court at which the judgment of dismissal was properly entered.” (Emphasis ours.)
Thus it appears that, while this Court has in terms recognized that a dismissal of a cause at law is a final disposition of it, and as such may be such a final disposition as will support a writ of error, yet it has also recognized and followed another generally accepted rule, which is to the effect that a dismissal, not involving the merits of a pending case, is not res adjudicata of the controversy, nor can it be pleaded in bar of a subsequent suit on the same subject matter. O’Neil v. Percival, 25 Fla. 118, 5 Sou. Rep. 809; Gilbert v. American Surety Co., 121 Fed. 499, 61 L. R. A. 253.
The ruling on the demurrers being erroneous, the judgment against the plaintiff must be reversed, with directions to sustain the demurrers to defendant’s pleas, and have such further proceedings as may be according to law.
Reversed with directions.
Whitfield, Brown and Buford, J. J., concur.
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Reddish v. Forlines, 207 So. 2d 703 (Fla. 1st DCA 1968)…ed by any party within one month after such order of dismissal.” . Fritz v. Sroczyk (Fla.App.1967), 202 So. 2d 796. . State ex rel. Croker v. Chillingworth, 106 Fla. 323, 143 So. 346, 347. . Commercial Credit Corporation v. Boswell, 108 Fla. 213, 146 So. 199. . Hassenteufel v. Howard Johnson, Inc. of Fla. (Fla.1951), 52 So. 2d 810. . 24 Am.Jur.2d 49-51, Dismissal, Discontinuance and Nonsuit, § 59; see also 167 A.L.R. 1062. . Macfarlane v. Hills, 50 Fla. 566, 39 So. 994. . Maloy v. Bristow (Fla.App.1…
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Hassenteufel v. Johnson, 52 So.2d 810 (Fla. 1951)….A., the latter Section being Chapter 14554, Acts of 1929, Ex.Sess., Laws of Florida. Section 45.19, F.S.A., Chapter 23965, Acts of 1929, was the applicable law on February 3, 1933, when we adopted the opinion of Commercial Credit Corp. v. Boswell, 108 Fla. 213, 146 So. 199, when we said: "We find the proposition relied upon as authority to support the ruling below to have been recently settled to the contrary by what was declared by this court in State ex rel. Croker v. Chillingworth [106 Fla. 323] 143 S…
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Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Chillingworth, 106 Fla. 323 (Fla. 1932)
- O'Neil v. Percival, 25 Fla. 118 (Fla. 1889)