W. G. SPIKER, PLAINTIFF IN ERROR,
v.
L. V. HESTER, DEFENDANT IN ERROR
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The Florida Supreme Court reversed a lower court's judgment, not because of the merits of the contract dispute, but because the order entered was an improper form for a non-suit with a bill of exceptions.
No, the lower court's order was not the proper form. It was in legal effect a final judgment on the merits for the defendant, which should not have been entered when a non-suit was taken.
“In this case the plaintiff in error failed to establish that he offered to comply with the contract on his part to be performed, at the time, if ever, he demanded a deed or at any other time.”
Establishes the plaintiff's failure to prove his case on the merits.
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Join FLexlaw to unlock all legal intelligenceThe plaintiff in error (appellant) failed to demonstrate that he offered to comply with the terms of a contract. The defendant was not shown to be in …
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In this case the plaintiff in error failed to establish that he offered to comply with the contract on his part to be performed, at the time, if ever, he demanded a deed or at any other time. Default on the part of the defendant-is not shown. The undertakings of the parties were concurrent and dependent, and for plaintiff to put defendant in default, he should have at least offered to comply with the terms of the contract. See Sanford v. Cloud, 17 Fla. 532; Walker v. Close, 98 Fla. 1103, 125 So. 521; Peterson v. Howell, 99 Fla. 179, 126 So. 362; Burke v. Wallace, 98 Fla. 604, 13 C. J. 571.
The judgment appealed from, however, must be reversed because not a proper form of order to be entered when plaintiff elects to take a non suit with bill of exceptions under Section 4617, C. G. L., 2907 R. G. S. The purported order of non suit from which the writ of error is taken in *288this case is in legal effect a final judgment on the merits for the defendant, which should not have been entered.
The proper form of order to be entered when a non suit is taken is not to order and adjudge that plaintiff take nothing by his declaration and that defendant go hence without day, as was done here.
In eases where a non suit is allowed, the proper form of entry is that the plaintiff being solemnly called came not, neither was his suit further prosecuted, whereupon plaintiff suffered a non suit. See Andrews Stephens Pleading (1st Ed.) page 195.
Reversed for proper order of non suit.
"Whitfield, P.J., and Terrell, J., concur.
Buford, C. J., and Ellis and Brown, J. J., concur in the opinion and judgment.
On Rehearing.
Opinion filed June 2,1931.
1. In cases where a non suit is allowed as a basis for a writ of error, a proper form of entry of judgment on such non suit would be "that the plaintiff being solemnly called came not, neither was his suit further prosecuted, whereupon the plaintiff suffered a non suit, and it is therefore considered by the Court that the plaintiff take nothing by his writ and that the defendant go hence without day and recover of the plaintiff his costs, etc.”
Upon further consideration, it is ordered that the opinion in the above case be amended so that the last four paragraphs thereof will read as follows:
“The judgment appealed from, however, must be reversed for a proper order to be entered when plaintiff elects to take a non suit with bill of exceptions under Section 4617, C. G. L., 2907, R. G. S. The purported order of non suit from which the writ of error is taken *289in this case is in legal form a final judgment for the defendant, which should not have been entered.
“The proper form of order to be entered when a non suit is taken under the statute is not merely to order and adjudge that plaintiff take nothing by his declaration and that defendant go1 hence without day, as was done here.
“In cases where a non suit is allowed as a basis for a writ of error, a proper form of entry of judgment on such non suit would be ‘that the plaintiff being solemnly called came not, neither was his suit further prosecuted, whereupon plaintiff suffered a non suit, and it is there fore considered by the Court that the plaintiff take nothing by his writ and that the defendant go hence without day and recover of the plaintiff his costs, etc.’ See Andrews Stephens on Pleading (1st Ed.) page 195. Hall vs. Patterson, 45 Fla. 354; 33 So. 982; Mizell Livestock Company vs. McCaskill, 57 Fla. 118, . . So . . .; Goldring vs. Redd, 60 Fla. 78, 53 So. 503.
“Reversed for proper order of non suit at costs ol' plaintiff in error against whom the judgment is other wise affirmed.”
Rehearing denied.
Buford, C.J., and Whitfield, Ellis, Terrell, Brown and Davis, J. J., concur.
On Rehearing.
Opinion filed June 2,1931.
1. In cases where a non suit is allowed as a basis for a writ of error, a proper form of entry of judgment on such non suit would be "that the plaintiff being solemnly called came not, neither was his suit further prosecuted, whereupon the plaintiff suffered a non suit, and it is therefore considered by the Court that the plaintiff take nothing by his writ and that the defendant go hence without day and recover of the plaintiff his costs, etc.”
Per Curium :
Upon further consideration, it is ordered that the opinion in the above case be amended so that the last four paragraphs thereof will read as follows:
“The judgment appealed from, however, must be reversed for a proper order to be entered when plaintiff elects to take a non suit with bill of exceptions under Section 4617, C. G. L., 2907, R. G. S. The purported order of non suit from which the writ of error is taken in this case is in legal form a final judgment for the defendant, which should not have been entered.
“The proper form of order to be entered when a non suit is taken under the statute is not merely to order and adjudge that plaintiff take nothing by his declaration and that defendant go1 hence without day, as was done here.
“In cases where a non suit is allowed as a basis for a writ of error, a proper form of entry of judgment on such non suit would be ‘that the plaintiff being solemnly called came not, neither was his suit further prosecuted, whereupon plaintiff suffered a non suit, and it is there fore considered by the Court that the plaintiff take nothing by his writ and that the defendant go hence without day and recover of the plaintiff his costs, etc.’ See Andrews Stephens on Pleading (1st Ed.) page 195. Hall vs. Patterson, 45 Fla. 354; 33 So. 982; Mizell Livestock Company vs. McCaskill, 57 Fla. 118, . . So . . .; Goldring vs. Redd, 60 Fla. 78, 53 So. 503.
“Reversed for proper order of non suit at costs ol' plaintiff in error against whom the judgment is other wise affirmed.”
Rehearing denied.
Buford, C.J., and Whitfield, Ellis, Terrell, Brown and Davis, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Chillingworth, 106 Fla. 323 (Fla. 1932)…R. A. 660. In this State it has been held that jurisdiction of the parties is not lost by the mere entry of a non-suit without a final judgment rendered and entered thereon. Whitaker v. Wright, 100 Fla. 282, 129 South. Rep. 889; Spiker vs. Hester, 101 Fla. 286, 133 South. Rep. 872. Dismissal and discontinuance are synonymous terms in effect. At common law it signified a gap in the proceedings after suit was brought, a failure to continue the cause regularly from term to term. The plaintiff hav [*330] ing…
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The State of Fla. ex rel. Earl William Paluska, Jr. v. The Honorable Jos. S. White, 162 So. 2d 697 (Fla. 2d DCA 1964)…ntary exhibit. The court sustained the petitioners’ objections both to the testimony of the witness and the exhibit. The plaintiffs moved the court for nonsuit, and subsequently a judgment of nonsuit in the form prescribed in Spiker v. Hester, 1931, 101 Fla. 286, 288, 133 So. 872, 135 So. 502, was entered. The plaintiffs instituted another action against the defendants based upon the same alleged cause of action. With other pleas [*699] the defendants filed a plea alleging the prior action and its terminat…
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Seaboard Oil Co. v. Chalk, 112 Fla. 387 (Fla. 1933)…been entered on the order of non-suit. See Goldring v. Reid, 60 Fla. 78, 53 So. 503. In this case a judgment dismissing the cause was rendered on the non-suit taken, which is a final judgment sufficient to support a writ of error. Spiker v. Hester, 101 Fla. 286, 288, 133 So. 872, 135 So. 502. And the order vacating the judgment of dismissal is analogous to an order granting a new trial to which a writ of error lies under Section 4615 (2905), Compiled General Laws, 1927. While the trial court had the power…
Authorities Cited
- Walker v. Close, 98 Fla. 1103 (Fla. 1929)
- Sanford v. Cloud, 17 Fla. 532 (Fla. 1880)
- Peterson v. Howell, 99 Fla. 179 (Fla. 1930)
- Goldring v. Reid, 60 Fla. 78 (Fla. 1910)
- Mizell Live Stock Co. v. The J. J. McCaskill Co., 57 Fla. 118 (Fla. 1909)
- Burke v. Wallace, 98 Fla. 604 (Fla. 1929)