J. W. YOUNG, INDIVIDUALLY AND FOR THE USE AND BENEFIT OF THE CONTINENTAL INSURANCE COMPANY OF NEW YORK, A CORPORATION, PLAINTIFF M ERROR,
v.
E. F. LASSITER AND E. J. LASSITER, CO-PARTNERS TRADING AND DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF CHERO COLA BOTTLING WORKS, DEFENDANT IN ERROR
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A plaintiff sought a writ of error to review an order sustaining the defendant's demurrer to the plaintiff's declaration. The Florida Supreme Court dismissed the writ because the lower court's order did not constitute a final judgment in the form required to support appellate review, though the court noted the order could be considered as an order for judgment if supplemented by a certified copy of the final judgment.
The order as entered does not constitute a final judgment supporting a writ of error in its current form, but may be considered as an order for judgment in the defendants' favor if supplemented by a certified copy of the judgment entered. The writ of error is dismissed.
“This court has several times held that such an entry as this does not constitute a final judgment which will support a writ of error.”
The court established that the form of judgment entered by the trial court did not meet the requirements for appellate review by writ of error.
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Join FLexlaw to unlock all legal intelligencePlaintiff J. W. Young, suing for the benefit of Continental Insurance Company of New York, filed a declaration against defendants E. F. Lassiter and E…
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West, J.
No final judgment is contained in the transcript of the record in this case. The order sought by the writ of error to be reviewed is as follows:
“This cause coming on before me upon the demurrer of the defendants to the declaration, and the. court having heard the argument of counsel and being advised in the premises, and the plaintiff by his attorneys desiring to stand upon the said declaration as drawn and refusing to amend the same. “It is thereupon ordered and adjudged that the demurrer of the defendants be and the same is hereby sustained.
“It is further ordered and adjudged that final judgment be entered in favor of the defendants and that the costs of this suit in the sum of $........................be taxed against the plaintiff, to which ruling the plaintiff excepts and his exception is hereby entered.”
This court has several times held that such an entry as this does not constitute a final judgment which will support a writ of error. Milteer v. S. A. L. Ry. Co., 65 Fla. 357, 61 South. Rep. 749; Pensacola Bank and Trust Co. v. National Bank St. Petersburg, 58 Fla. 340, 50 South. Rep. 414; Blanton v. West Coast R. Co., 58 Fla. 169, 50 South. Rep. 945; Dallam v. Sanchez, 56 Fla. 779, 47 South. Rep. 871; Cobb v. Santa Rosa County, 47 Fla. 135, 36 South. Rep. 172, Haynes v. Bramlett, 46 Fla. 348, 35 South. Rep. 3; Hall v. Patterson, 45 Fla. 353, 33 South. Rep. 982.
This entry may be considered as an order for judgment in favor of defendants and final judgment entered in the case, to review which writ of error may be taken, and the transcript of record now on file, being supplemented by certified copy of the judgment entered, may be used.
Writ of Error is dismissed.
Whitfield, P. J., and Terrell, J., concur. Taylor, C. J., and Ellis and Browne, J. J., concur in the opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (21 total)
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Holman Willis v. Mrs. M. C. Fowler, 102 Fla. 35 (Fla. 1931)…ction 5035 C. G. L., a creditor’s bill may only be filed by a creditor who has either reduced his claim to judgment, or has instituted a suit in a proper court of law for its collection. Armour Fertilizer Works, vs. First National Bank, 87 Fla. 436, 100 So. 362. The insolvency of the defendant affords no exception to the rule. Tampa & R. C. R. Co. v. Mulhern, 73 Fla. 146, 74 So. 297. To [*61] bring a case within the exception to the general rule which is made in Claflin v. Ambrose, 37 Fla. 78, 19 So. 628,…
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George E. Sebring Co. v. O'Rourke, 134 So. 556 (Fla. 1931)…creditor could resort to his remedy by "creditor's bill," he must first secure judgment at law and exhaust all means afforded by the law to recover upon an execution based upon such judgment. Armour Fertilizer Works v. First Nat. Bank, 87 Fla. 436, 100 So. 362; Scott v. Neely, 140 U.S. 106, 11 S.Ct. 712, 35 L.Ed. 358. In the first case above cited, this Court held that a creditor's bill is one brought by a creditor who has secured judgment at law and has in vain attempted at law to obtain satisfaction and…1 / 2
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Bay View Ests. Corp. v. Southerland, 114 Fla. 635 (Fla. 1934)…d then no decree will be entered upon the creditor’s bill until the claim shall have been reduced to judgment. See Adam Brewing Co. v. Bowman, 92 Fla. 509, 109 South. Rep. 583. In the case of Armour Fertilizer Works v. First Nat. Bank, 87 Fla. 436, 100 South. Rep. 362, Mr. Justice Terrell, speaking for the Court, said: “A creditor’s bill is one brought by a creditor who has secured judgment at law, and has in vain attempted at law to obtain satisfaction, and who sues in equity for the purpose of reaching property…
Previewing 3 of 21 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Weeke v. Reeve, 65 Fla. 374 (Fla. 1913)
- Dallam v. Sanchez, 56 Fla. 779 (Fla. 1908)
- Callie Hall v. Patterson, 45 Fla. 353 (Fla. 1903)
- Haynes v. Bramlett, 46 Fla. 348 (Fla. 1903)
- Cobb v. Cnty. of Santa Rosa, 47 Fla. 135 (Fla. 1904)
- Pensacola Bank & Tr. Co. v. The Nat'l Bank of St. Petersburg, 58 Fla. 340 (Fla. 1909)
- Milteer v. Seaboard Air Line Ry. Co., 65 Fla. 357 (Fla. 1913)
- Blanton v. The W. Coast Ry. Co., 58 Fla. 169 (Fla. 1909)