ESTHER SCHWENCK, BY HER GUARDIAN AND NEXT FRIEND, LOUISE SCHWENCK,
v.
HARRY JACOBS, IDA JACOBS AND SHIRLEY JACOBS BY HER GUARDIAN, HARRY JACOBS, AND CHARLES G. HANNOCK
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The Florida Supreme Court held that a judgment sustaining a demurrer to a second amended declaration, resulting in dismissal of the plaintiff's suit, constitutes a final, appealable judgment. The Court rejected the defendants' motion to dismiss the appeal for lack of jurisdiction.
A judgment sustaining a demurrer to a declaration is a final, appealable judgment when it is final in nature and ends the pendency of the case in the trial court between the parties to the appeal.
“Whether a judgment entered by the trial court is such a final judgment as will support an appeal depends largely upon its legal effect. If it is one final in nature and wherein time has commenced to run, whereby the trial court will lose jurisdiction to further consider or reconsider, then for purposes of appeal or writ of error it is a final judgment.”
Establishes the standard for determining whether a judgment is appealable—it must be final in nature and deprive the trial court of further jurisdiction.
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Join FLexlaw to unlock all legal intelligenceEsther Schwenck, by her guardian Louise Schwenck, filed suit against Harry Jacobs, Ida Jacobs, Shirley Jacobs, and Charles G. Hannock. The defendants …
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The final judgment entered in this case was as follows:
“This cause coming on to be heard before me upon the Demurrer of the defendants, Harry Jacobs, Ida Jacobs and Shirley Jacobs, by her guardian, Harry Jacobs, to the plaintiffs’ second amended declaration, and after argument of counsel for the respective parties, and the court being duly advised in the premises.
“IT IS THEREUPON ORDERED AND ADJUDGED that the said demurrer be and the same is hereby sustained.
“IT IS FURTHER ORDERED AND ADJUDGED that the plaintiffs take nothing by their writ in this cause, and that the defendants, Harry Jacobs, Ida Jacobs, and Shirley Jacobs by her guardian, Harry Jacobs, go hence without day and that the said defendants have judgment against the plaintiffs for their costs in this behalf expended.”
Thereupon the plaintiffs-appellants prosecuted an appeal and the appellees-defendants filed their motion to dismiss the appeal upon the ground that such judgment is not such a final judgment as is appealable, as provided by Section 59.02 (1), Ch. 22854, Acts 1945.
Whether a judgment entered by the trial court is such a final judgment as will support an appeal depends largely upon its legal effect. If it is one final in nature and wherein time has commenced to run, whereby the trial court will lose jurisdiction to further consider or reconsider, then for purposes of appeal or writ of error it is a final judgment.
*35Of course an order that the demurrer be sustained, that a non-suit be granted, or that defendant have judgment, is insufficient; in these instances more is required.
The limitations for taking an appeal or writ of error are with the object that the successful party will know when his litigation has ended and, also, that it be ended.
In Cook v. Cook, 18 Fla. 634, the plaintiff’s case was dismissed by the Clerk for his failure to file a declaration, and the trial judge denied a motion of plaintiff to set aside judgment of dismissal, and it was held that same constituted a final judgment of dismissal, and it was held that same constituted a final judgment to support a writ of error to a final judgment.
A judgment non prosequitur that “plaintiff take nothing” and “suit stand dismissed” held to support writ of error to final judgment.
Hewitt v. International Shoe Co., 110 Fla. 37, 148 So. 533.
A non-suit without an order of dismissal is not sufficient to support a writ of error to a final judgment.
Goldring v. Reid, 60 Fla. 78, 53 So. 503.
“Where in a suit at law it is determined by the Judge of the Circuit Court in which the case has been instituted that such Court is without jurisdiction to proceed therein, and that the cause should therefore be dismissed at plaintiff’s costs, and an order of dismissal is accordingly entered, dismissing the suit at law solely because of the Circuit Court’s finding of its own lack of jurisdiction and for no other cause, such an order being final in its nature, may submit a writ of error. ...”
State ex rel., George P. Garrett v. John B. Johnson, Circuit Judge, 112 Fla. 112, 113, 150 So. 239, 151 So. 315.
Jurisdiction in the Supreme Court may attach only after a judgment final in its nature has been entered by the trial court and after time has commenced to run when the trial court will not longer have power to exercise its jurisdiction over the subject matter of the judgment.
When the judgment appealed is a judgment on demurrer to a declaration as is final in its nature and is such as to end the pendency of the case in the trial court as between the ap*36pellant and the appellee, then it is such a final judgment as is appealable. The rule stated in Ropes v. Lansing (1903), 46 Fla. 231, 35 So. 863, does not apply because therein there was no final judgment.
The judgment appealed as between the parties to the appeal is a final judgment ending the pendency of the case in the trial court as between the parties to the appeal.
The motion to dismiss the appeal is denied.
THOMAS, C. J., TERRELL, BUFORD, CHAPMAN, ADAMS and SEBRING, JJ., concur.
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Emp'rs' Fire Ins. Co. v. Cont'l Ins. Co., 326 So. 2d 177 (Fla. 1976)…apsed after all nonministerial, judicial labor in the litigation had ended. In the preponderance of trial cases, attorneys, on their own or by request, submit the judgment document. . This result is consistent with Schwenek v. Jacobs, 160 Fla. 352, 33 So. 2d 592 (1948), holding that the time for appeal relates to the legal effect of a judgment as tested by the lower court's loss of jurisdiction over the lawsuit. The eases set forth in footnote 1 are overruled. Our previous decision that an unsigned minute b…
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Marvell Womack v. Burton F. Goldberg and Joyce S. Goldberg, 117 So. 2d 758 (Fla. 3d DCA 1960)…on v. Carlton, 156 Fla. 170, 22 So. 2d 874. See also Barns, Appeal and Error, 12 U.Miami L.Rev. 541, 551-2 (1958). But see Lykes Bros. Florida Co. v. King, 125 Fla. 101, 169 So. 595; Dudemaine v. Shaw, 153 Fla. 16, 13 So. 2d 444; Schwenck v. Jacobs, 160 Fla. 33, 33 So. 2d 592. . Other federal eases which hold to the same effect are Jung v. K. & D. Mining Co., 356 U.S. 335, 78 S.Ct. 764, 2 L.Ed. 806; Cleary Brothers v. Christie Scow Corporation, 2 Cir., 1949, 176 F. 2d 370; Leonard v. Socony-Vacuum Oil Co.…
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Ruth v. United States Fid. & Guar. Co., 83 So. 2d 769 (Fla. 1955)…opinion. Biggs v. United States Fidelity & Guaranty Co., Fla., 73 So. 2d 714. Proceedings to effectuate an appropriate appeal to test the correctness of the ruling complained of were available to the complaining parties. Compare Schwenck v. Jacobs, 160 Fla. 33, 33 So. 2d 592, with Sumerall v. Florida Tar & Creosote Corp., Fla., 55 So. 2d 713. Following denial of certiorari the complaining parties embarked upon a renewed effort to litigate their claim involved in former case 5756, in the form of the insta…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Johnson, 112 Fla. 112 (Fla. 1933)
- Goldring v. Reid, 60 Fla. 78 (Fla. 1910)
- Beatty v. Lucas, 112 Fla. 265 (Fla. 1933)
- Hewitt v. Int'l Shoe Co., 110 Fla. 37 (Fla. 1933)
- State v. Prescott, 110 Fla. 261 (Fla. 1933)
- Ropes v. Lansing, 46 Fla. 231 (Fla. 1903)
- Cook v. Yancey S. Cook, 18 Fla. 634 (Fla. 1882)