Opinion
No. 62-714.
February 26, 1963.
Appeal from the Circuit Court for Dade County, Grady L. Crawford, J.
Frates, Fay Floyd and Kenneth L. Ryskamp, Miami, for appellant.
Walton, Lantaff, Schroeder, Atkins, Carson Wahl, Miami, for appellee.
Before PEARSON, TILLMAN, C.J., and CARROLL and HENDRY, JJ.
The appellee's motion to dismiss the appeal is denied. A plaintiff may appeal an order of nonsuit without the order being in form of a final judgment. §§ 59.02, 59.05, Fla. Stat., F.S.A.
At the trial the plaintiff elected to take an involuntary nonsuit because of a ruling of the court, and the order for nonsuit was appealed. The movant contended the order was not appealable because it did not include language necessary to make it a final judgment.
Appellee cited cases covering a fifty year period, holding such an order must be final in form to be appealable. However, in 1941 the law was changed to except orders of involuntary nonsuit from the statute restricting writs of error or appeals in law actions to final judgments. See §§ 59.02 and 59.05, Fla. Stat., F.S.A. The earlier cited cases were correct in so holding, but a dictum in the cited case which was decided after 1941, (Schwenck v. Jacobs, (1948) 160 Fla. 33, 33 So.2d 592, 594) stating that an order for nonsuit without an order of dismissal was not appealable because not final, appears in conflict with the statutes which then provided and now provide otherwise.
It is so ordered.