
    Richard E. CONNER, Petitioner, v. Maurice WAGNER, Respondent.
    No. 61-368.
    District Court of Appeal of Florida. Third District.
    Dec. 11, 1961.
    Rehearing Denied Dec. 28, 1961.
    Fred R. Brannon, Jr., New Smyrna Beach, and Richard E. Conner, New Smyrna Beach for petitioner.
    Daniel L. Ginsberg, Miami, for respondent.
    Before PEARSON, TILLMAN, C. J., and CARROLL and HENDRY, JJ.
   PER CURIAM.

iWe have for review on certiorari an order entered in a common law action in the circuit court in Dade County granting plaintiff a nonsuit. The trial judge on hearing defendant’s motion for summary judgment announced that he would grant it, whereupon the plaintiff took a nonsuit, but that action amounted to a departure from essential requirements of law in that it was not taken “on trial.” We recently had occasion to rule on this point. In the case of Welgoss v. End, Fla.App.1959, 112 So.2d 390, we held that a nonsuit as provided for under § 54.09 Fla.Stat., F.S.A., must be taken within the framework of the trial and “before the jury retire from the bar.” Accordingly certiorari is granted, the order under review is quashed and the cause remanded for further proceedings not inconsistent herewith.

It is so ordered.  