Bennett v. Fratus

PER CURIAM.

This matter is before us on appellee’s motion to dismiss an appeal taken by the defendant below from an order of voluntary nonsuit entered at the behest of the plaintiff during the course of a jury trial in a law action.

The trial court’s order was as follows:

“This Cause coming on to be heard on the Plaintiff’s Motion for a Non-Suit pursuant to Florida Statute S4.09, and the Defendant having objected to the Plaintiff’s taking such non-suit it is hereby

“Ordered and Adjudged that the Plaintiff is hereby allowed to take a non-suit without prejudice, costs to be taxed against the Plaintiff.”

The order is nonappealable, and the appeal is hereby dismissed. Section 59.05, Fla.Stat., F.S.A., permits a plaintiff to appeal from an order, nonfinal in form, which allows an involuntary nonsuit. This appeal may not proceed under that section of the statute, and its vitality is dependent upon there being a final judgment or order of dismissal. Cf. Greene v. American Trash Hauling Co., Inc., Fla.App.1963, 154 So.2d 726. The order to which this appeal is directed lacks requisite finality.

It is so ordered.