IN RE ESTATE OF MARY MITCHELL MOLLARD, DECEASED. JOHN THORNE MOLLARD, EXECUTOR, APPELLANT,
v.
EMILY L. AUSTIN, APPELLEE
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The court clarified that in probate proceedings, which follow equity practice, a defendant cannot move for a directed verdict at the close of the plaintiff's evidence unless the defendant submits the case on that evidence alone. The court denied a petition for rehearing, adhering to its prior opinion.
No, the rule for directed verdicts in law actions does not apply to probate proceedings. In equity practice, a defendant cannot move for a directed verdict at the close of the plaintiff's evidence unless the defendant submits the case for a final decree based solely on the plaintiff's proof.
“In the trial of equity cases before-a chancellor, established procedure does not permit dismissal of the complaint at the conclusion of the plaintiff's evidence unless, the defendant elects to submit the cause for entry of final decree on the plaintiff's proof only.”
Establishes the rule for equity cases regarding dismissal at the close of plaintiff's evidence.
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Join FLexlaw to unlock all legal intelligenceThe appellee (defendant) in a probate proceeding moved for and was granted a directed verdict at the conclusion of the appellant's (plaintiff's) evide…
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Appellee’s petition for rehearing insists that Rule 2.7 (a), Florida Rules of Civil Procedure, 31 F.S.A., relates only to jury trials in actions at law, and not to-probate proceedings, which traditionally are governed by the practice in equity. This is true since no comparable rule is spelled out in that phase of the rules dealing exclusively with suits in equity or in any statute or rule dealing specifically with probate proceedings.
In the trial of equity cases before-a chancellor, established procedure does not permit dismissal of the complaint at the conclusion of the plaintiff’s evidence unless, the defendant elects to submit the cause for entry of final decree on the plaintiff’s proof only. 30 C.J.S. Equity § 579, p. 972;. Pearce v. Tharpe, 118 Miss. 107, 79 So. 69, 73. The county judge was without authority to grant the motion for directed verdict, but as a matter of procedure should have required defendant to submit the case on final hearing for entry of appropriate judgment on plaintiff’s proof only, or in the alternative have permitted the cause to. *881proceed to final conclusion and entry of judgment on the evidence offered by both parties.
Our suggestion of the procedure to be followed in the trial court is not to' be construed as prohibiting further cross or redirect examination of the petitioner, whose testimony was interrupted by the granting of the motion discussed, or as limiting the discretion of the trial judge generally to supervise the presentation of proofs.
With the clarification herein expressed, we adhere to our former opinion, and the petition for rehearing is denied.
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Ganaway v. Henderson, 103 So. 2d 693 (Fla. 1st DCA 1958)…take affirmative action for transfer to the law side immediately upon conclusion of plaintiff’s evidence in chief. This court recently held that a motion for a directed verdict is not available in equity practice. In re Mollard’s Estate, Fla.App., 101 So. 2d 880. The rationale is that in proceedings where the judge is trier of both law and fact such motion is meaningless because he has the duty to decide for the movant if the facts will not support a judgment or decree against him. The party aggrieved by a…
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Tampa Wholesale Co. v. Foodtown, 166 So. 2d 711 (Fla. 2d DCA 1964)…ral decisions, which contain language supporting the appellant’s position. See McKee v. Fairmont Homes, Inc., Fla.App.1963, 155 So. 2d 733; Nelson v. Cranero Constructors, Inc., Fla.App.1960, 117 So. 2d 764; and In re Mollard’s Estate, Fla.App.1957, 101 So. 2d 880. The Court took special note of this part of Rule 1.35(b) in Janczewski v. Janczewski, Fla.App.1959, 114 So. 2d 428, and noted that it came from Rule 41(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. However, the Court in that case had no o…
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Bronislaw Janczewski v. Henryka Janczewski, 114 So. 2d 428 (Fla. 3d DCA 1959)…defendant’s motion to dismiss (in the nature of a motion for directed verdict) at the close of plaintiff’s case. After the court’s refusal, the defendant offered evidence in the cause. According to the case of In re Estate of Mollard, Fla.App.1957, 101 So. 2d 880, a motion to dismiss at the conclusion of plaintiff’s evidence is not permitted unless the defendant elects to submit the cause for entry of final decree on the plaintiff’s proof only. Although this procedure is correct practice ■ in equity, it is o…