O. J. WHITAKER, PLAINTIFF IN ERROR,
v.
BERTHA J. WRIGHT, A FREE DEALER, DEFENDANT IN ERROR
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The Florida Supreme Court dismissed a writ of error challenging an order that vacated a non-suit judgment and reinstated the case on the docket, holding that such an interlocutory order is not a final judgment from which a writ of error lies.
An order vacating and setting aside a non-suit judgment and reinstating the case on the docket is not a final judgment and therefore does not support a writ of error. Such an order merely restores the parties to their prior status, allowing them to proceed to a final judgment in the lower court.
“The result of an order setting aside and vacating an order of non-suit and reinstating the cause on the docket of the court, if the court has jurisdiction of the parties and the subject matter of the suit, has the effect of placing the suit and the parties before the court occupying the same status which they occupied before the judgment of non-suit was entered”
Explains the legal effect of the trial court's order—it restores the parties to their pre-judgment status rather than creating a final judgment
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Join FLexlaw to unlock all legal intelligenceThe plaintiff in error sought a writ of error to challenge an order by the trial court that vacated and set aside an order of non-suit and reinstated …
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Buford, J.
In this case there was a motion to dismiss the writ of error. The. writ of error is sued out to an order vacating and setting aside an order of non-suit and reinstating the case on the docket. The plaintiff in error contends that such order vacating and setting aside the order of non-suit and reinstating the cause on the docket is a final judgment to which writ of error will lie.
The motion to dismiss is upon the ground that the writ of error is not sued out to a final judgment.'
The result .of an order setting aside and vacating an order of non-suit and reinstating the cause on the docket of the court, if the court has jurisdiction of the parties and the subject matter of the suit, has the effect of placing the suit and the parties before'the court occupying the same status which they occupied before the judgment of non-suit was entered and the parties may proceed to a final judgment, the defendant maintaining his right to assign the order vacating and setting aside the order of non-suit as error, if he sees fit to do so, or if he conceives it to be true that the court has lost jurisdiction either of the parties or of the subject matter of the litigation by the order of non-suit, or otherwise, he may raise this question by proper pleadings properly and duly interposed. The appellant is not deprived of any right to contest the merits of the cause in the lower court.
We think that the judgment could in no sense be considered a final judgment from which writ of error lies. See Haley v. Haley, 93 N. C. 195, and cases there cited. Also see Bain, Administrator, v. Bain, 106 N. C. 239.
For the reason stated, the motion to dismiss should be granted and it is so ordered.
Dismissed.
Whitfield, P. J., and Strum, J., concur. Terrell, C. J., and Ellis and Broavn, J. J., concur in the opinion and judgment.
[*502] Brown, J.,
(Concurring).—The judgment of non-suit in this case was not such as would have supported a writ of error, under the holding in Goldring v. Reid, 60 Fla. 78, 53 So. R. 503. It' merely granted and ordered a non-suit— no more. Therefore, the order setting it aside and reinstating the case on the docket was not such a final judgment as would support writ of error.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Whitaker v. Wright, 100 Fla. 282 (Fla. 1930)…the plaintiff “finally disposed of the case” and that all parties “went out of court” and [*287] that the court thereby lost jurisdiction of the parties and the case. This is the third appearance of this ease in this Court. See Whitaker v. Wright, 98 Fla. 500, 123 So. R. 857; and Whitaker v. Wright, 99 Fla. 500, 127 So. R. 306. Its first appearance here was upon a writ of error taken by defendant to the order reinstating the suit on the docket, and. it was held that a writ of error did not lie to an orde…
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State v. Burton Barrs, 129 Fla. 668 (Fla. 1937)…ered an order of non-suit without a judgment as above indicated, it would have retained jurisdiction of the cause and could have set aside and vacated the order of non-suit. See Whitaker v. Wright, 100 Fla. 282, 129 Sou. 889; and Whitaker v. Wright, 98 Fla. 500, and 123 Sou. 857. It being admitted that the Civil Court of Record had jurisdiction of the subject matter and of the parties at the time which those matters occurred hereinabove referred to, and it further appearing that no final judgment was ente…
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Seaboard Oil Co. v. Chalk, 112 Fla. 387 (Fla. 1933)…d in the court below, for the party who had obtained the verdict in the court below, unless a motion in arrest of judgment, or for judgment non obstante veredicto, shall be made and prevail.” Sec. 4615 (1905), C. G. L., 1927. In Whitaker v. Wright, 98 Fla. 500, 123 So. 857, a writ of error was taken to an order vacating and setting aside an order of non-suit and reinstating the case on the docket, was dismissed because no final judgment had been entered on the order of non-suit. See Goldring v. Reid, 60 F…
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- Goldring v. Reid, 60 Fla. 78 (Fla. 1910)