Opinion
Opinion filed September 25, 1929.
A case of original jurisdiction.
Writ denied without prejudice.
James M. Carson and George G. Herring, for Relators.
This matter comes before the Court on original petition for writ of prohibition.
George A. DeCottes brought suit in the Circuit Court against the Sanford Herald in an action for libel, claiming damages in the sum of One Hundred Thousand ($100,000) Dollars.
The cause came on for trial and after the case had been submitted to the jury and the jury had retired to consider its verdict, a motion and waiver was filed by the plaintiff, in words and figures as follows:
"The court having heretofore directed the jury in this cause to return a verdict in favor of the plaintiff, assessing his damages in such sum as they may determine from One Cent (1c) to One Hundred Thousand Dollars ($100,000), and the jury having failed as yet to render a verdict as directed by the court, comes now the plaintiff herein and waives any and all damages of and from the defendant for the wrongs and injuries complained of in his declaration in this cause, except damages in the sum of One Cent (1c), and further moves the court to direct that a verdict be signed by one of the members of the jury as foreman in the following language to-wit
'We, the jury, find for the plaintiff, Geo. A. DeCottes, and against the defendant, The Sanford Herald, a corporation, and assess his damages in the sum of one cent, so say we all.
__________________ Foreman.'
Dated this 17th day of August, A.D. 1929.
Geo. A. DeCottes,
In propria persona."
And, thereupon, the following proceedings are shown by the record:
"Comes now the plaintiff in his own proper person and moves the court to instruct the jury to return a verdict in favor of the plaintiff assessing damages in the sum of One Cent, which motion was denied by the court.
"Comes now the plaintiff by his attorney, Cary D. Landis, and moves the court for a directed verdict for the plaintiff in the sum of One Cent, files a waiver of all other damages except this sum, which motion was denied by the court.
"The jury here entered open court and announced that they could not agree, whereupon the court declared a mis-trial, and the jury was discharged for the term."
It is the contention of the relator that the filing of the waiver of all damages in excess of One Cent has the effect of reducing the claim of damages sought to be recovered in this suit to the sum of One Cent and that, therefore, the Circuit Court is without jurisdiction of the cause.
There is nothing in the record presented, nor in the petition, to show that any application has been made or any pleadings filed in the lower court raising the question of jurisdiction, nor is there anything in the petition or the record before us to show that the Circuit Court intends to take any further cognizance of, or action in, this cause. Therefore, the petition for the writ of prohibition should be denied without prejudice and it is so ordered.
Denied.
WHITFIELD, P. J., AND STRUM, J., concur.
TERRELL, C. J., AND ELLIS AND BROWN, J. J., concur in the opinion and judgment.