LUDWIG CARLSON AND JOHN LIND, LATE PARTNERS UNDER THE FIRM NAME OF CARLSON & LIND, PLAINTIFFS IN ERROR,
v.
ALBERT E. ZIEHME, DOING BUSINESS AS A. E. ZIEHME & COMPANY, DEFENDANT IN ERROR
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The Florida Supreme Court dismissed a writ of error because the trial court record failed to include a copy of the final judgment in full, as required by the court's rules. The court held that an order directing the clerk to enter judgment, combined with a recital that judgment was entered, does not constitute a properly documented final judgment sufficient to support appellate review.
The writ of error must be dismissed because the record does not contain a full copy of the final judgment. An order directing the clerk to enter judgment and a mere recital that judgment was entered do not constitute a final judgment sufficient to support a writ of error under Florida statute and Supreme Court rules.
“where the record proper fails to show any final judgment in a case, an appeal or writ of error entered or taken therein will be dismissed”
Establishes the fundamental requirement that the record must contain proof of a final judgment for appellate jurisdiction
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Join FLexlaw to unlock all legal intelligenceIn the lower court proceedings, the trial judge sustained demurrers to certain pleas filed by defendants and denied their motion to strike other pleas…
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Per Curiam.
This cause having been reached by the court in regular order for final decision upon the merits, it appears that the following are the only entries contained in the transcript of the record as to the judgment the cause: “This cause coming on to be heard upon the demurrers to pleas numbered 5, 6, 7, 8, 9 and 10, and motion to strike pleas numbered 7 and 8, and the court having heard the arguments of counsel and considered the same, and found that the said motion and demurrers are well founded in law, it is ordered that the said demurrers be sustained and said motion granted; and it appearing to the court that all of the pleas filed herein have been withdrawn except the pleas demurred to as aforesaid, and it appearing to the court that the defendants should not be allowed any further time to plead, and defendants by their counsel being present in court and declining to plead further, it is ordered that the plaintiff do recover judgment of the defendants, and that the clerk upon the filing of the proper proofs do enter the same. Charles B. Parkhill, Judge.”
“The plaintiff filed proofs and the clerk entered up judgment, against the defendants in favor of the plaintiff in the sum of $133.20, principal and $29.19 costs.”
The directions to the clerk filed under the rule required the clerk to copy in full the judgment of the court into the transcript prepared for this court.
The above extracts from the record show that the judge ordered a judgment to be entered by the clerk upon the filing of the proper proofs, and also show a recital that the clerk entered up judgment against the defendants, but there is no copy of the judgment in the record.
It has been frequently held by this court that where the record proper fails to show any final judgment in a case, an appeal or writ of error entered or taken therein will be dismissed. The record entry of a final judgment must be set forth in full in the transcript of the record proper in order that this court may determine if it is a final judgment. Special Rule 3 of the Supreme Court Rules contains a direction that the judgment be inserted in full, and the clerk is required to certify that the transcript contains “a correct transcript of the record of the judgment,” as well as other matters. An order “that the plaintiff do recover judgment of the defendants, and that the clerk upon the filing of the proper proofs do enter the same,” and a recital that “the plaintiff filed proofs and the clerk entered up judgment against the defen dants in favor of the plaintiff in the sum of $133,20 principal and $29.49 costs,” do not severally or collectively constitute a final judgment to support a writ of error under our statute. Ropes v. Lansing, 49 Fla. 225, 38 South. Rep. 177, and authorities there cited.
The writ of error is dismissed.
Shackleford, C. J., and Cockrell and Whitfield, JJ., concur. Taylor and Hocker, JJ., concur in the opinion.
Parkhill, J., being disqualified, took no part in this decision.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Renard v. Kirkeby Hotels, Inc., 99 So. 2d 719 (Fla. 3d DCA 1958)…er sustained” on a demurrer to a declaration in a common law action. The court in that case held that the words “demurrer sustained” were but an order for judgment and not a judgment from which an appeal would lie. Thereafter,- in Carlson v. Ziehme, 51 Fla. 226, 40 So. 502, the court was confronted with a writ of error taken from an order “that the plaintiff do recover judgment of the defendants, and that the clerk upon the filing of the proper proofs do enter the same’-’ and a further recital that “the pl…
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State v. Chillingworth, 106 Fla. 323 (Fla. 1932)…minute entry quoted in the foregoing opinion constituted a final judgment by the Court. The following cases are very persuasive to the contrary; Ropes v. Eldridge, 39 Fla. 47, 21 So. 570; Ropes v. Lansing, 49 Fla. 225, 38 So. 177; Carlson v. Zihone, 51 Fla. 226, 40 So. 502; Pitts-burg Steel Co. v. Streety, 60 Fla. 183, 53 So. 505; Edwards v. Davenport, 11 Ala. App. 423, 66 So. 878; Mizell Live Stock Co. vs. McCaskill Co., 58 Fla. 118, 49 So. 501 ; Ellis v. State, 100 So. 27, 106, 69 A. L. R. 783. The entry…
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Elliott v. Lazar, 104 So. 2d 618 (Fla. 2d DCA 1958)…rer sustained’ on a demurrer to a declaration in a common law action. The court in that case held that the words ‘demurrer sustained’ were but an order for judgment and not a judgment from which an appeal would lie. Thereafter, in Carlson v. Ziehme, 51 Fla. 226, 40 So. 502, the court was confronted with a writ of error taken from an order ‘that the plaintiff do recover judgment of the defendants, and that the clerk upon the filing of the proper proofs do enter the same’ and a further recital that ‘the plai…
Authorities Cited
- Ropes v. Lansing, 49 Fla. 225 (Fla. 1905)