Judges: ELLIS, J. —
Attorneys: Watson Saussy, for Plaintiff in Error;
James Booth, for Defendant in Error.
Filed: Mar. 08, 1930
Latest Update: Mar. 02, 2020
Summary: J. D. Ershick on February 27, 1926, at about eight-thirty o'clock in the morning was walking on the east *Page 485 side of Third Street at the intersection of that street and Central Avenue in the City of St. Petersburg. As he was crossing the Avenue he observed two automobiles on the north side of Central Avenue which were going west on the Avenue but had stopped at the Third Street line waiting for the traffic signal light before proceeding on their way. As Ershick came to the center of the Av
Summary: J. D. Ershick on February 27, 1926, at about eight-thirty o'clock in the morning was walking on the east *Page 485 side of Third Street at the intersection of that street and Central Avenue in the City of St. Petersburg. As he was crossing the Avenue he observed two automobiles on the north side of Central Avenue which were going west on the Avenue but had stopped at the Third Street line waiting for the traffic signal light before proceeding on their way. As Ershick came to the center of the Ave..
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Originally, at common law, a judgment non obstante veredicto
could be entered only when the plea confessed the cause of action and set up matters in avoidance which were insufficient to constitute a defense or bar to the action. 33 C. J. 1178.
As stated in the opinion of Mr. Justice ELLIS, the strict common law rule was that a motion for judgment non obstanteveredicto could only be interposed by a plaintiff, but this rule appears to have been relaxed in the case of Williams v. Hines, 80 Fla. 690, 86 So. R. 695, where, under the somewhat peculiar facts of that case, this remedy was held available to the defendant. It was also the rule at common law that a judgment non obstante veredicto must be based solely upon matters appearing upon the face of the record, and that the evidence could not be looked to in determining a motion for such a judgment. It was not therefore the appropriate remedy where a verdict was against the weight of, or unsupported by, the evidence. 11 Ency. of Pldg. and Prac., 917; 33 C. J. 1183. It is thus apparent that a judgment non obstante veredicto at common law was merely one species of a judgment on the pleadings. Accordingly, it was an easy step to relax the rule and hold that a judgment might be rendered on the pleadings for either party entitled to it thereby, irrespective of the verdict, and this is now the rule in many jurisdictions; in fact, it appears to be the prevailing rule. 33 C. J. 1179-1180; 11 Ency. of Pldg. and Prac. 914, 1030. A general treatment of this subject will be found in 33 C. J. 1177-1188, and Crandall's Fla. Common Law Prac., Section 490; and some of our own cases dealing with the
appropriateness of this remedy where parties have gone to trial upon pleas of confession and avoidance setting up immaterial issues are: Hyer v. Vaughn, 18 Fla. 647; Jones v. Shomaker,41 Fla. 232, 26 So. R. 191, and Peoples Nat. Bank v. Magruder,77 Fla. 235, 81 So. R. 44 D. See also Gregory v. McNealy, 12 Fla. 578, and Edgar v. Bacon, 97 Fla. 679, 122 So. R. 107; Ruff v. G. S. F. Railway Co., 67 Fla. 224, text 232, 64 So. R. 782, text 785.
WHITFIELD AND STRUM, J. J., concur.
