Spiker v. Hester

133 So. 872, 101 Fla. 286

• Court: Supreme Court of Florida
• Decided: April 22, 1931
• Status: Published

Opinions

Davis, J.

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 this 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.