MIZELL LIVE STOCK COMPANY, A CORPORATION, PLAINTIFF IN ERROR,
v.
THE J. J. MCCASKILL COMPANY, A CORPORATION, DEFENDANT IN ERROR
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The Florida Supreme Court dismissed a writ of error for lack of a final judgment. The lower court entered a non-suit but failed to issue a formal final judgment declaring the legal consequences of that non-suit, which the court held was insufficient to support appellate review.
The court held that the entry does not constitute a final judgment because it is merely a recitation that a non-suit occurred without declaring the legal consequences of that non-suit. A final judgment must contain both finality of the cause and, under common law, an element of involuntariness; although the statute abolishes the involuntariness requirement, finality remains essential.
“This does not constitute a final judgment. It is at most a mere recitation of record that a non-suit had been entered. It does not purport to declare the sentence of the law upon the entry of the non-suit, which is an essential element of final judgment.”
Establishes that a recitation of non-suit without declaring legal consequences is insufficient for appellate review
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Join FLexlaw to unlock all legal intelligenceMizell Live Stock Company and J. J. McCaskill Company joined issues, a jury was empanelled, and trial commenced. The trial court sustained the defenda…
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Shackleford, J.
In taking up this case for consideration we find that the record discloses the fact that is sues were joined between the parties, a jury empanelled and a trial entered upon, but the only entry in the nature of a judgment is in this language:
“The plaintiff, on the trial of this case, after the ruling of the court sustaining the defendant’s objection to the introduction in evidence of the paper under which plaintiff claimed title, stated in open court that on account of such ruling it was necessary for it to suffer a non-suit, and requested that it be allowed to file a bill of exception, so as to have the said ruling-of the court reviewed by the Supreme 'Court, and by order of the court such non-suit was allowed and plaintiff was granted thirty days from this date in which to present and file the Bill of Exceptions.”
This does not constitute a final judgment. It is at most a mere recitation of record that a non-suit had been entered. It does not purport to declare the sentence of the law upon the entry of the non-suit, which is an essential element of final judgment. This case is ruled by Ropes v. Eldridge, 39 Fla. 47, 21 South. Rep. 570. Also see Boggess v. Cox, 48 Mo. 278 and 1 Black on Judgments, section 115, there cited.
Section 1691 of the General Statutes of 1906, reads: “Writs of error shall lie only from final judgments,_ except as specified in Section 1695,” which latter section allows the writ to orders granting new trials. Section 1692 has the effect of making rules or summary orders of the court upon its officers to pay money a final judgment and the next section permits certain discretionary orders reviewable after final judgment. Section 1697, under which the plaintiff in error has attempted to act says:
“1697. (1269.) Bills of exception upon, non-suit— When, from any decision of the court on the trial of a cause in any court, it may become necessary for the plaintiff to suffer a non-suit, the facts, points or decisions may be reserved for the decision of the appellate court by bill of exceptions as in other cases."
To a right understanding of the last quoted section and to reconcile it with section 1691, it must be recalled that there were at the common law two prerequisites to the right of review by writ of error; there must have been' not only a finality of the cause in the inferior court but there must have entered into that judgment the element of involuntariness.
The effect of the statute therefore, is to do away •only with the latter feature, but in view of the positive inhibition contained in section 1691 that allows but the one exception therein expressly referred to, and thereby excluding other exceptions by construction, we are forced to the holding that the entry before us does nor contain that finality of judgment which will support a writ of error. As to what constitutes a final judgment for the defendant, see Hall v. Patterson, 45 Fla. 353, 33 South. Rep. 982. Also see Dallam v. Sanchez, 56 Fla. 779, 47 South. Rep. 871, and authorities there cited.
The writ of error is dismissed.
All concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Mizell Live Stock Co. v. J. J. McCaskill Co., 59 Fla. 322 (Fla. 1910)…a bill of exceptions, as provided by section 1697 of the General Statutes of 1906. A former writ of error was dismissed for the reason that the transcript of the record failed to show any final judgment. Mizell Live Stock Co. v. J. J. McCaskill Co., 57 Fla. 118, 49 South. Rep. 501. Only one error is assigned and only one point presented to us for consideration and determination. After the vice-president of the plaintiff corporation had testified as a witness in its behalf to the effect that such corporati…
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Whitaker v. Wright, 100 Fla. 282 (Fla. 1930)…on is dismissed, or that the defendant go hence without day, or that the plaintiff take nothing by the action, or other equivalent expressions and adjudicating that the action as instituted is at an end.” Mizell Livestock Co. v. J. J. McCaskill Co., 57 Fla. 118, 49 So. R. 501; Hall v. Patterson, 45 Fla. 353, 33 So. R. 982. In the ease at bar the record shows the court entered an order of nonsuit, but it is now shown that a final judgment was ever entered on the nonsuit. Therefore, there was no final dispo…
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Bell v. Niles, 61 Fla. 114 (Fla. 1911)
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dallam v. Sanchez, 56 Fla. 779 (Fla. 1908)
- Callie Hall v. Patterson, 45 Fla. 353 (Fla. 1903)
- Ropes v. Eldridge, 39 Fla. 47 (Fla. 1897)