American Motorists Insurance v. Fox

180 So. 2d 512, 1965 Fla. App. LEXIS 3884

• Court: District Court of Appeal of Florida
• Decided: November 16, 1965
• Docket: No. 5489
• Status: Published

Opinion

PER CURIAM.

The appellant appeals the following order:

“This cause was duly presented by counsel for the parties after notice and upon consideration thereof, it is ORDERED and ADJUDGED that Plaintiff’s Motion, filed April 13, 1964, for summary decree, is denied; that defendant’s motion filed June 18, 1964, for summary decree, is granted. Counsel agreed at the hearing that the Court should take notice of the entire record in Case Number 61 C 377-C, lately pending in this Court. The matters sought to be litigated in the present case were or should have been litigated in the former case.

“Copy furnished counsel.

“DONE and ORDERED this 30th day of June, A.D. 1964.

/s/ Jos. S. White Circuit Judge”

The judgment in Case No. 61 C 377-C, referred to in the above order, found as follows :

“1. That the defendant, AMERICAN MOTORISTS INSURANCE COMPANY, is not liable to the Defendants, ROBERT L. HOOPER, HELENE L. KNOTTS, a/k/a HELENE L. HOOPER, GEORGE J. STERZL and MARGARET VON S. STERZL, by virtue of the policy of insurance Number TM14411 issued by said defendants.

“2. That the Defendant, AMERICAN MOTORISTS INSURANCE COMPANY, is liable to the Plaintiff, L. ERNA FOX, and said plaintiff shall have and recover from said Defendant, AMERICAN MOTORISTS INSURANCE COMPANY, as and for damages the sum of Five Thousand, Nine Hundred, Thirty-Eight Dollars and Ten Cents ($5,938.10).

“3. That the Plaintiff, L. ERNA FOX, shall have and recover from the Defendant, AMERICAN MOTORISTS INSURANCE COMPANY, as and for reasonable attorney’s fee the sum of Eight Hundred Dollars ($800.00).

“4. That said sums so to be found due by Plaintiff, L. ERNA FOX, from the Defendant, AMERICAN MOTORISTS INSURANCE COMPANY, shall be in full satisfaction of any and all liability or obligation said defendant may have under the terms of the hereinbefore mentioned policy of insurance.

“DONE AND ORDERED at West Palm Beach, Florida, this 27th day of February, 1963.

/s/ James R. Knott Circuit Judge.”

The circuit judge recited in the order appealed that the attorneys agreed at the hearing that the court should take notice of the entire record in Case No. 61 C 377-C, lately pending in the Circuit Court of Palm Beach County.

The order appealed comes to this court with the presumption of correctness. The lower court could properly examine, on the consent of the parties, the record of Case No. 61 C 377-C in order to determine whether the issues between the parties were, or should have been, determined in a prior suit referred to as Case No. 61 C 377-C. Not having the record of the former suit before us, we cannot now reverse the lower court.

Therefore, we affirm the lower court.

ALLEN, C. J., and -SMITH and ANDREWS, JJ., concur.