EFROIM MAX ROBINSON, APPELLANT,
v.
ELIZABETH MALIK, APPELLEE
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Robinson appeals a final decree in a partition suit against Malik, seeking to divide residence property and an automobile. The trial court denied partition, awarded the automobile to Robinson with a credit to Malik, and found Malik entitled to $10,281.91 for services rendered to Robinson. The appellate court affirmed, finding all four points raised on appeal to be without merit.
The court affirmed the decree, finding no reversible error. The jury trial right was waived when the matter proceeded without objection after the cross-plaintiff withdrew the jury demand. The statute of limitations for wages did not apply because the record failed to show that more than one year elapsed between the accrual of the cause of action and the suit for recovery. The trial court's factual findings were supported by the record and not clearly erroneous.
“Withdrawal thereof without cross-defendant's consent would not have deprived the latter of the right to a jury trial (Rule 2.1(d), F.R.C.P., 31 F.S.A.), but it appears the matter proceeded to trial before the chancellor without objection.”
Establishes that while withdrawal alone might not waive jury trial rights, proceeding without objection waives the right
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Join FLexlaw to unlock all legal intelligenceRobinson sued Malik for partition of residence premises and an automobile. Malik filed a counterclaim seeking recovery for services (caring for Robins…
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This is the third appeal in this case. See Robinson v. Malik, Fla.App.1959, 115 So.2d 702, and Robinson v. Malik, Fla. App.1961, 135 So.2d 445. The present appeal is taken by the plaintiff below from the final decree.
The suit was commenced by Efroim Robinson against Elizabeth Malik for partition of certain residence premises and an automobile. The defendant filed a counterclaim, which she designated as a cross claim, in which she claimed the property and sought to recover for services (caring for) the plaintiff on his promises to compensate her. The facts and matters in controversy are shown in sufficient detail in the opinions of this court on the two earlier appeals.
The decree now on appeal, rendered on final hearing, denied partition, held that the real estate was the property of the de*20fendant; awarded the automobile to the plaintiff with credit to the defendant for her interest therein; and found the defendant was entitled to a net amount of $10,281.91 for her services.
The appellant makes four points, which on consideration this court finds to be without merit. Appellant argues there should have been a jury trial on the counterclaim. The cross-plaintiff had requested it, but withdrew the request before trial. Withdrawal thereof without cross-defendant’s consent would not have deprived the latter of the right to a jury trial (Rule 2.1(d), F.R.C.P., 31 F.S.A.), but it appears the matter proceeded to trial before the chancellor without objection. The final decree first rendered was reversed (135 So.2d 445) and trial was resumed without a jury before objection. Under the circumstance the right was waived. See May v. Arnold Construction Company, Fla. 1955, 78 So.2d 705, 707. The one year statute of limitations for suits for recovery on wages (§ 95.11(7) (b), Fla.Stat., F.S.A.) which was held to be applicable to actions to recover for services of the kind involved here (Buenger v. Kennedy, Fla.App. 1963, 151 So.2d 463) is relied on by the appellant, but the record in this case fails to show it should be applied here. This is so because it is not disclosed that more than a year elapsed between the accrual of the cause of action for the services and the proceeding for recovery thereon. The third and fourth points have to do with rulings of the chancellor based on his determination of the facts. The appellant has failed to demonstrate that the chancellor’s findings do not have adequate support in the record or that such rulings are clearly wrong. They come here aided by a presumption of correctness which the appellant has not dispelled.
No reversible error having been made to appear, the decree appealed from is hereby affirmed.
Affirmed.
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Filiherto Raul Martin, R.N. v. Ullman, 555 So. 2d 1232 (Fla. 3d DCA 1989)…ried non-jury. Accordingly, we hold that appellant’s actions herein are sufficient affirmative acts to constitute a waiver of his constitutional right to a jury trial, see Loiselle v. Gladfelter, 160 So. 2d 740 (Fla. 3d DCA 1964); Robinson v. Malik, 164 So. 2d 19 (Fla. 3d DCA), cert. denied, 169 So. 2d 386 (Fla.1964), as well as a “consent”, under Fla.R.Civ.P. 1.430(d), to appellee’s withdrawal of his prior request. As a final matter, we are not unmindful that for us to grant appellant a new trial under the…
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Lily Goehring v. Broward Builders Exch., Inc., 222 So. 2d 801 (Fla. 4th DCA 1969)…tation. We are aware of the decisions from other districts which may be at variance with the conclusion we have reached. Buenger v. Kennedy, Fla.App.1963, 151 So. 2d 463; Keel v. Brown, Fla.App.1964, 162 So. 2d 321; Robinson v. Malik, Fla.App.1964, 164 So. 2d 19; France v. Ross, Fla.App.1964, 165 So. 2d 780; and Miami Beach First National Bank v. Borbiro, Fla.App.1967, 201 So. 2d 571; cf. Briggs v. Fitzpatrick, Fla.1955, 79 So. 2d 848, and Schenkel v. Atlantic National Bank of Jacksonville, Fla.App.1962, 14…
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Robinson v. Malik, 169 So. 2d 386 (Fla. 1964)…Certiorari denied without opinion. 164 So. 2d 19.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dinnen v. Lincoln Fin. Co., Inc., 151 So. 2d 463 (Fla. 2d DCA 1963)
- Efroim Max Robinson v. Malik, 135 So. 2d 445 (Fla. 3d DCA 1961)
- Efroim Max Robinson v. Malik, 115 So. 2d 702 (Fla. 3d DCA 1959)
- MAY v. Arnold Constr. Co., 78 So. 2d 705 (Fla. 1955)