DIEGO MELLA, APPELLANT,
v.
THEODORE MOSKOWITZ, ET AL., APPELLEES
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Florida appellate court affirmed judgment, holding that trial court committed no reversible error in failing to enforce a witness subpoena by writ of body attachment where plaintiff never requested such enforcement at trial.
A trial court commits no reversible error in failing to enforce a witness subpoena by writ of body attachment when the plaintiff never requested such enforcement at trial.
[1] A party cannot raise for the first time on appeal a trial court's failure to enforce a witness subpoena when the party never requested such enforcement at trial.
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Join FLexlaw to unlock all legal intelligencePlaintiff Diego Mella sought to compel testimony from Dr. Scott Piper at trial. Initially, Dr. Piper was excused from a defendant's subpoena, and plai…
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PER CURIAM.
The final judgment under review is affirmed upon a holding that the trial court committed no reversible error in failing to enforce at trial a witness subpoena against a witness [Dr. Scott Piper] by issuing a writ of body attachment against the said witness. because: (a) the plaintiff never requested the trial court, either directly or impliedly, to issue such a writ but only requested that “the Court call him [Dr. Piper] on the phone and ask him to come [to trial]” [T. 10], which request the trial court granted [T. 11]; (b) Dr. Piper was not under subpoena at the time the above request was made [having been properly excused from same by the defendants who had previously subpoenaed said witness], so that a writ of body attachment would not have been permissible at that time in any event. We do not overlook, indeed, we agree with, the plaintiffs contention that, subsequent to this request, Dr. Piper was properly subpoenaed for trial by the plaintiff. See Haney v. Olin Corp., 245 So. 2d 671 (Fla. 4th DCA 1971).
The plaintiff, however, at no time requested the trial court, either directly or impliedly, to enforce that subpoena after the witness failed to appear [T. 67-78]; the plaintiff, therefore, cannot now complain for the first time on appeal that the trial court failed to enforce this subpoena. Paul v. Kanter, 155 So. 2d 402, 403 (Fla. 3d DCA 1963).
Affirmed.
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Citator
Authorities Cited
- Fay S. Paul v. Risa Bonnie Kanter & the Hertz Corp., 155 So. 2d 402 (Fla. 3d DCA 1963)
- Haney v. Olin Corp., 245 So. 2d 671 (Fla. 4th DCA 1971)