VANCE GREENE, AND JACK F. GREENE AS ADMINISTRATOR OF THE ESTATE OF SAMUEL C. GREENE, DECEASED, APPELLANT,
v.
AMERICAN TRASH HAULING CO., INC., A FLORIDA CORPORATION, APPELLEE
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An order of nonsuit is appealable even if not in the form of a final judgment, due to statutory changes.
Plaintiff took an involuntary nonsuit after a court ruling and appealed the order. The appellee moved to dismiss, arguing the order was not a final ju…
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The appellee’s motion to dismiss the appeal is denied. A plaintiff may appeal an order of nonsuit without the order being in form of a final judgment. §§ 59.02, 59.05, Fla.Stat., F.S.A.
At the trial the plaintiff elected to take an involuntary nonsuit because of a ruling of the court, and the order for non-suit was appealed. The movant contended the order was not appealable because it did not include language necessary to make it a .final judgment.
Appellee cited cases covering a fifty year period, holding such an order must be final in form to be appealable. However, in 1941 the law was changed to except orders of involuntary nonsuit from the statute restricting writs of error or appeals in law actions to final judgments. See §§ 59.02 •and 59.05, Fla.Stat., F.S.A. The earlier •cited cases were correct in so holding, but •a dictum in the cited case which was decided •after 1941, (Schwenck v. Jacobs, (1948) 160 Fla. 33, 33 So.2d 592, 594) stating that an •order for nonsuit without an order of dismissal was not appealable because not final, .appears in conflict with the statutes which •then provided and now provide otherwise.
It is so ordered.
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Peaslee v. Michalski, 167 So. 2d 242 (Fla. 2d DCA 1964)…ber Co., 94 Fla. 1096, 114 So. 666; Goldring v. Reid, 60 Fla. 78, 53 So. 503; Mizell Live Stock Co. v. J. J. McCaskill Co., 57 Fla. 118, 49 So. 501. Cf. Conner v. Wagner, Fla.App.1961, 135 So. 2d 441; Greene v. Trash Hauling Co., Inc., Fla.App.1963, 154 So. 2d 726; Dodson v. Crews, Fla.App.1964, 164 So. 2d 252; Bennett v. Fratus, Fla.App.1964, 164 So. 2d 827. The foregoing cases clearly show that an appropriate and regular way to conclude a case nonsuited is to procure the entry of a final judgment from whic…
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Thoman v. Timmothy Ashley, 170 So. 2d 332 (Fla. 2d DCA 1964)…plaintiff to appeal an order which prompts him to take an involuntary nonsuit, but there has been no relaxation of the rule which prohibits a defendant from appealing a voluntary nonsuit. See Greene v. American Trash Hauling Co., Inc., Fla.App.1963, 154 So. 2d 726. It has also been held that a defendant may not obtain review of an order on nonsuit by resort to prohibition. State ex rel. Paluska v. White, Fla.App. 1964, 162 So. 2d 697. In the present case, the immediate matter sought to be reviewed is an orde…
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Bennett v. Fratus, 164 So. 2d 827 (Fla. 3d DCA 1964)…which allows an involuntary nonsuit. This appeal may not proceed under that section of the statute, and its vitality is dependent upon there being a final judgment or order of dismissal. Cf. Greene v. American Trash Hauling Co., Inc., Fla.App.1963, 154 So. 2d 726. The order to which this appeal is directed lacks requisite finality. It is so ordered.…
Authorities Cited
- Schwenck v. Jacobs, 160 Fla. 33 (Fla. 1948)