Lucian v. the Sou. Ohio Savings Bank Trust Co. , 156 Fla. 370 ( 1945 )

Upon a re-study of the record in this case I feel impelled to recede from my concurrence in the opinion prepared by Mr. Justice TERRELL. In the case of Burkhart v. Burkhart, 144 Fla. 168,197 So. 730, and 144 Fla. 176, 198 So. 21, it was held that the special appearance and motion to dismiss the bill of complaint did not constitute a general appearance. Although I did not participate in that decision which was apparently based on the opinion in Bowmall v. Bowmall, 127 Fla. 747, 174 So. 14, I was familiar with the point presented and held the conviction that a contrary ruling should have been made for the reasons later given in an opinion prepared by Mr. Justice SEBRING, Aldrick v. Aldrich, 153 Fla. 856, 16 So. 2d 47, to which I agreed, and in Rollins v. Rollins, 155 Fla. 83,19 So. 2d 562, which I wrote. For the same reasons I agreed only to the conclusion in Burkhart v. Circuit Court, 146 Fla. 457,1 So. 2d 872. The decisions in the Aldrich and Rollins cases were contrary to the announcement in Bowmall v. Bowmall, supra.

Nevertheless, I now feel that, despite these views, an outright affirmance of the decision of the lower court should be entered because the rule announced in the opinion first above cited had become the law of the case and should be followed therefore in this litigation.

ADAMS, J., concurs.

ON FURTHER REHEARING