Judges: PER CURIAM. —
Attorneys: Julian Hartridge, for Plaintiff in Error;
White Colson, for Defendants in Error.
Filed: Feb. 09, 1935
Latest Update: Mar. 02, 2020
Summary: In an action to recover damages from *Page 384 the Seaboard Oil Company for the alleged maintenance of an alleged nuisance to the injury of the plaintiffs, the second count of the declaration was abandoned at the trial "together with the concluding lines of the declaration which read as follows: " 'Hence this suit and Plaintiffs claim punitive damages, in the sum of Forty-Two Thousand ($42,000.00) Dollars.' " The first count contains allegations that in December, 1924, "the plaintiffs were and *
Summary: In an action to recover damages from *Page 384 the Seaboard Oil Company for the alleged maintenance of an alleged nuisance to the injury of the plaintiffs, the second count of the declaration was abandoned at the trial "together with the concluding lines of the declaration which read as follows: " 'Hence this suit and Plaintiffs claim punitive damages, in the sum of Forty-Two Thousand ($42,000.00) Dollars.' " The first count contains allegations that in December, 1924, "the plaintiffs were and * ..
More
In the Seaboard Oil Co. v. Chalk, 112 Fla. 387, 150 So. 605, it was held that the order vacating the order and judgment of nonsuit entered herein, is analogous to an order granting a new trial. The statute, Section 4615 (2905) C. G. L., provides that when an order granting a new trial is reversed on writ of error, the appellate court "shall direct final judgment to be entered in the court below, for the party who had obtained the verdict in the court below, unless a motion in arrest of judgment, or for judgment non obstante veredicto, shall be made and prevail." If the order granting a new trial is affirmed on writ of error, the cause is remanded for a new trial.
In writs of error to an order granting a new trial, the statute requires the court to "review the said order." Section 4615 (2905) C. G. L. Assignments of error cannot enlarge the scope of the review fixed by the statute in allowing a writ of error to an order granting a new trial. As a writ of error to an order vacating a judgment of nonsuit is allowed only because of its analogy to an order granting a new trial, the scope of the appellate review is similar to that of an order granting a new trial.
Motion to recall mandate denied.
WHITFIELD, C. J., and ELLIS, TERRELL, BROWN, BUFORD and DAVIS, J. J., concur.
