A. L. MARSH, PLAINTIFF IN ERROR,
v.
ATLANTIC COAST LINE RAILROAD COMPANY, A CORPORATION, DEFENDANT IN ERROR
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The Florida Supreme Court dismissed a writ of error, finding that the clerk of the Circuit Court improperly entered an order dismissing the case. This order was not a final judgment that could support a writ of error to review the merits of the underlying case.
No, the clerk's order of dismissal was unauthorized and not a final judgment that could support a writ of error to review the merits of the case.
“As the plaintiff did not amend his declaration, judgment final for the defendant upon the demurrer to the declaration may have been entered, Hower v. Lewton, 18 Fla. 328, to which final judgment a writ of error may have been taken; but the order of dismissal of the cause entered by the clerk after a demurrer to the amended declaration had been sustained, was unauthorized, and it is not such a final judgment as will support a writ of error to review the merits of the case, therefore the write of error is dismissed.”
This quote explains why the writ of error was dismissed, distinguishing between a proper final judgment and the unauthorized order of dismissal.
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Join FLexlaw to unlock all legal intelligenceThe Circuit Court sustained a demurrer to an amended declaration, and subsequent amended declarations were either stricken or had demurrers sustained.…
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Whitfield, J.
The Circuit Court sustained a demurrer ' to an amended declaration. Another amended declaration was filed in four counts. Two counts were stricken on motion and demurrers to the other two counts were sustained “and the plaintiff allowed to amend as he may be advised on or before October Rule A. D. 1916.”
On November 6, 1916, the clerk of the Circuit Court at the instance of the defendant entered’ an order dismissing the cause “for failure on the part of the plaintiff to amond his declaration or file an amended declaration within the time allowed by the court for this purpose.” The plaintiff took writ of error. As the plaintiff did not amend his declaration, judgment final for the defendant upon the demurrer to the declaration may have been entered, Hower v. Lewton, 18 Fla. 328, to which final judgment a writ of error may have been taken; but the order of dismissal of the cause entered by the clerk after a demurrer to the amended declaration had been sustained, was unauthorized, and it is not such a final judgment as will support a writ of error to review the merits of the case, therefore the write of error is dismissed.
All concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Casper Howarth v. City of DeLand, 117 Fla. 692 (Fla. 1934)…on the demurrer, not a decree or judgment against defendants by default as for want of any defense at all. See Cosmopolitan Fire Ins. Co. v. Boatright, 59 Fla. 232, 51 Sou. Rep. 540; Hower v. Lewton, 18 Fla. 328; Marsh v. Atlantic Coast Line R. Co., 76 Fla. 534, 80 Sou. Rep. 307. [*705] The principle of the above cited authorities applies whether the case be one in equity or at law. Judgment should be on the demurrer in every case where the demurring party whose demurrer is overruled refuses to further ple…
Authorities Cited
- Hower v. Lewton, 18 Fla. 328 (Fla. 1881)