O'Hara v. Hollywood Finance Corp.

District Court of Appeal of Florida

O'Hara v. Hollywood Finance Corp.

163 So. 2d 794, 1964 Fla. App. LEXIS 4228

CourtDistrict Court of Appeal of Florida

DecidedMay 8, 1964

DocketNo. 4402

StatusPublished

This text of 163 So. 2d 794 (O'Hara v. Hollywood Finance Corp.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

O'Hara v. Hollywood Finance Corp., 163 So. 2d 794, 1964 Fla. App. LEXIS 4228 (Fla. Ct. App. 1964).

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Opinion

BARNS, PAUL D., Associate Judge.

This is an appeal by the plaintiff from an order of dismissal of an action at law. We find error and reverse.

The appellant-plaintiff gave defendants notice of a hearing of defendants’ motion to •dismiss the complaint and each of its two counts for failure to state a cause of action. The motion was noticed for a hearing on May 27, 1963. The plaintiff’s attorney failed to appear at the hearing; and on July 5, 1963, the judge entered the order of dismissal as follows:

“THIS CAUSE came on to be heard on Defendants’ Motion to Dismiss and it appearing to the Court that the Plaintiff set down said Motion to Dismiss for hearing, and further that counsel for the Plaintiff failed to appear on the time and date set for said hearing, and the Court being further advised in the premises, it is

“ORDERED AND ADJUDGED that the above styled cause be and the same is hereby dismissed at the cost of Plaintiff.”

Thereafter, appellant’s attorney filed •a motion to set aside the judgment of dismissal explaining the reasons for his failure to attend the hearing, which latter motion was denied. On this appeal the ap•pellant’s brief is addressed to the merits of appellant’s complaint as tested by the motion to dismiss. Appellees’ brief is addressed to the point that the dismissal was entered because of failure of plaintiff to prosecute by her attorney not attending his noticed hearing. Although the context of the order lends support to the position taken by the appellees, we will treat the order to be one passing on the merits of the complaint as tested by the motion to dismiss.

‘ It is our conclusion that the complaint states a cause of action in case for malicious prosecution and it was error to dismiss it. See Wilson v. O’Neal, Fla.App. 1960, 118 So.2d 101, 21 Fla.Jur. 285.

The judgment appealed is reversed.

ALLEN, Acting C. J., and WHITE, J., concur.

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BARNS, PAUL D., Associate Judge.

This is an appeal by the plaintiff from an order of dismissal of an action at law. We find error and reverse.

The appellant-plaintiff gave defendants notice of a hearing of defendants’ motion to •dismiss the complaint and each of its two counts for failure to state a cause of action. The motion was noticed for a hearing on May 27, 1963. The plaintiff’s attorney failed to appear at the hearing; and on July 5, 1963, the judge entered the order of dismissal as follows:

“THIS CAUSE came on to be heard on Defendants’ Motion to Dismiss and it appearing to the Court that the Plaintiff set down said Motion to Dismiss for hearing, and further that counsel for the Plaintiff failed to appear on the time and date set for said hearing, and the Court being further advised in the premises, it is

“ORDERED AND ADJUDGED that the above styled cause be and the same is hereby dismissed at the cost of Plaintiff.”

Thereafter, appellant’s attorney filed •a motion to set aside the judgment of dismissal explaining the reasons for his failure to attend the hearing, which latter motion was denied. On this appeal the ap•pellant’s brief is addressed to the merits of appellant’s complaint as tested by the motion to dismiss. Appellees’ brief is addressed to the point that the dismissal was entered because of failure of plaintiff to prosecute by her attorney not attending his noticed hearing. Although the context of the order lends support to the position taken by the appellees, we will treat the order to be one passing on the merits of the complaint as tested by the motion to dismiss.

‘ It is our conclusion that the complaint states a cause of action in case for malicious prosecution and it was error to dismiss it. See Wilson v. O’Neal, Fla.App. 1960, 118 So.2d 101, 21 Fla.Jur. 285.

The judgment appealed is reversed.

ALLEN, Acting C. J., and WHITE, J., concur.

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Bluebook (online)

163 So. 2d 794, 1964 Fla. App. LEXIS 4228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ohara-v-hollywood-finance-corp-fladistctapp-1964.

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