ELEANOR WELGOSS, APPELLANT,
v.
HENRY END, APPELLEE
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A plaintiff in a chancery proceeding does not have an absolute right to a dismissal after the defendant files an answer or motion for summary judgment.
Plaintiff requested a continuance due to illness, and her counsel then moved for a voluntary non-suit. The defendant moved for dismissal with prejudic…
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This chancery action was filed on June 3, 1958. On August 6th, the chancellor entered an order setting the cause for trial before a jury during the week of September 29. Due to circumstances not disclosed in the record, the trial was re-set for October 9th. During the afternoon of October 8th, plaintiff wired her counsel from Beverly Hills, California, notifying him that she was ill and requesting a 90-day continuance. Before the impaneling of a jury, plaintiff’s counsel requested a voluntary non-suit and defendant moved for dismissal with prejudice. The chancellor denied the former and granted the latter, whereupon the plaintiff appealed.
Although a jury trial was authorized in this chancery action, the provisions of § 54.09, Fla.Stat, F.S.A., relative *391to the right of a plaintiff to take a non-suit before the jury retires, have been applied generally in law actions. However, assuming the provisions of § 54.09, supra, could apply to these proceedings, the appellant does not come within the provisions thereof for the reason that the cause was not “on trial”.
A plaintiff in a chancery proceeding does not have an absolute right to a dismissal of his action after the filing of the defendant’s answer or motion for summary judgment, whichever comes first. Rule 1.35(a) (1) (i), Florida Rules of Civil Procedure, 30 F.S.A. We have carefully reviewed the record in this cause and fail to find wherein the chancellor abused his discretion in dismissing the cause with prejudice. See 10 Fla.Jur., Dismissal, etc., § 9.
Accordingly, the order appealed from is affirmed.
CARROLL, CHAS., C. J., and PEARSON, J., concur.
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Dobson v. Crews, 164 So. 2d 252 (Fla. 1st DCA 1964)…e by the defendant, a pre-trial conference held and the case ready for trial. The trial court denied plaintiff’s motion and dismissed the action with prejudice, and the appellate court held his action not an abuse of discretion. In Wellgoss v. End, 112 So. 2d 390, District Court of Appeal of Florida, Third District, decided 1959, a chancery suit where jury trial was set under such circumstance as to authorize it, the plaintiff’s-counsel, on the morning of the trial and before the jury was impaneled, requeste…1 / 2
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R. C. #17 Corp. v. Korenblit, 207 So. 2d 296 (Fla. 3d DCA 1968)…is settled that the submission of a factual question in an equity case to a jury is one in the discretion of the Chancellor.’ Berg v. New York Life Insurance Company [Fla.] 88 So. 2d 915; Smith v. [Croom] Crown, 7 Fla. 180; Welgoss v. End [Fla.App.] 112 So. 2d 390; Degge v. First State Bank, supra. “A court of equity should afford remedies and enforce rights in light of the circumstances, and should provide complete and final relief to the litigants. It is therefore: “ORDERED, ADJUDGED AND DECREED, as follo…
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Maloy v. Bristow, 138 So. 2d 801 (Fla. 3d DCA 1962)…“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 her of the status of the matter, that the case was ready…
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