WISE
v.
SPEARS
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The court held that an order sustaining a demurrer and taxing costs is not a final judgment from which an appeal can be taken.
The plaintiffs attempted to appeal an order sustaining the defendant's demurrer to their complaint and awarding costs. The record was incomplete due t…
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This proceeding is by motion to substitute a lost record, and thereupon to amend a final judgment nunc pro tunc.
The judgment appealed from is, omitting prefatory recitals, as follows:
"It is considered and adjudged by the court that the demurrer is well taken, and that it be and is hereby sustained by the court, and the defendants have and recover of the plaintiffs the costs of this cause, for which execution may issue."
In Eslava v. Jones, 79 Ala. 287, it is said:
"The only judgment found in this record is an order of the court sustaining defendant's demurrer to plaintiff's complaint, and adjudging the costs of the motion against plaintiff. This is not a judgment disposing of the cause. There is no final judgment upon which an appeal will lie, and the motion to dismiss the appeal is granted."
That case is decisive of this appeal, and, the matter being jurisdictional, we are bound to dismiss the appeal ex mero motu. Meyers v. Martinez, 162 Ala. 562, 50 So. 351.
Appeal dismissed.
ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.
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Forbes v. The Fort Lauderdale Mercantile Co., 83 Fla. 66 (Fla. 1922)…e should have been tested by demurrer, they are so clearly insufficient as a defense to the action that a technically erroneous- method of testing their sufficiency cannot be said to have been harmful to the defendant. Charles v. Young, 74 Fla. 298, 76 South. Rep. 869; Hooker v. Forrester, 53 Fla. 392, 43 South. Rep. 241. The declaration was filed on March 22, 1920. The order striking defendant’s pleas was made on January 6, 1921. On January 20, 1921, on motion of plaintiff a judgment by default was entered agai…
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Glass v. Layton, 140 Fla. 522 (Fla. 1937)…ecree, errors assigned on other interlocutory orders not specifically appealed from will not be considered by the appellate court.” Prall v. Prall, 58 Fla. 496 (H. N. 10), 50 So. 857, 26 L. R. A. (N. S.) 577. See also Morgan v. Howell, 74 Fla. 334, 76 So. 869; Bostwick v. Van Sant, 98 Fla. 565, 124 So. 14; City of Miami v. Miami Realty, Loan & Guaranty Co., 57 Fla. 366, 49 So. 55; Camp Phosphate Co. v. Anderson, 48 Fla. 226, 37 So. 722; 111 Am. St. Repts. 77; Wiggins v. Williams, 36 Fla. 637, 18 So. 859,…
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Mrs. S. L. A. Clonts v. Spurway, 104 Fla. 340 (Fla. 1932)…s to answer the whole of the substantial allegations in .any one or separate count in a declaration, the plaintiff has a right to take judgment nil dicit as to so much of the declaration as was not covered by the plea. Charles v. Young, 74 Fla. 298, 76 So. 869; 34 C. J. pages 148 and 165. The above statement as to the law on that subject is quoted with approval from the Massachusetts case of Dwight v. Holbrook, 1 Allen (Mass.) 560, which is followed in the later ease of Parker v. Parker, 34 Mass. 236. A…
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