Opinion
April 25, 1950. On Rehearing June 23, 1950. Rehearing Denied July 17, 1950.
Appeal from the Circuit Court, Dade County, Charles A. Carroll, J.
Sibley Davis, Miami Beach, for appellant.
Milton M. Ferrell, Miami, for appellee.
Affirmed.
ADAMS, C.J., CHAPMAN, HOBSON and ROBERTS, JJ., concur.
THOMAS, J., and TAYLOR, Associate Justice, dissent.
TERRELL, J., not participating.
On Rehearing.
We have reconsidered the evidence presented on behalf of the appellant as plaintiff below in the light of the petition for rehearing. We are required, upon the instant appeal, to accept as true all of the evidence which was produced on behalf of the appellant and to glean the reasonable inferences deducible therefrom. This is so because the Chancellor granted a motion to dismiss at the conclusion of the taking of the testimony of appellant and his witnesses.
The real question presented for our determination hinges upon whether the appellant failed to make out a prima facie case. We have reviewed the evidence and have again considered it in connection with our adjudications in the cases of Gratz v. Gratz, 137 Fla. 709, 188 So. 580; Henderson v. Henderson, 137 Fla. 770, 189 So. 24; Baldwin v. Baldwin, 151 Fla. 341, 9 So.2d 717; Hahn v. Hahn, 153 Fla. 584, 15 So.2d 292 and cases cited by the writers of the opinions therein, and have concluded that the Chancellor erred in dismissing appellant's suit at the termination of the taking of the testimony produced by him.
In so holding we do not mean to attempt in any manner to direct the Chancellor in the exercise of his sound judicial discretion in granting or denying a divorce after he has heard all of the evidence and considered the case upon its merits. We hold only that the appellant made out a prima facie case i.e., his unimpeached testimony including that of his witnesses is sufficient to justify the entry of a decree of divorce in his favor.
Reversed.
ADAMS, C.J., CHAPMAN, THOMAS and ROBERTS, JJ., and TAYLOR, Associate Justice, concur.