HERPEL, INCORPORATED, A FLORIDA CORPORATION, APPELLANT,
v.
ANN PFUNDSTON, APPELLEE
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Herpel, Inc. appealed from an order dismissing its slander complaint against Ann Pfundston. The appellate court dismissed the appeal because the order being appealed was not a final judgment—a subsequent order vacated the trial court's grant of leave to amend, but the appellant did not appeal that subsequent order, leaving the court without jurisdiction.
The July 22, 1957 order was not a final judgment because it was not final when the appeal was issued on August 14, 1957—the August 15 order vacating leave to amend rendered the earlier order non-final. Therefore, the appellate court lacked jurisdiction and must dismiss the appeal.
“The writ of error purports to be issued to a final judgment; but, if there was no final judgment in existence when the writ of error was issued, it is ineffectual, and cannot be used to bring to the appellate court for review a final judgment nunc pro tunc subsequently rendered.”
Establishes the principle that an appeal must be directed to a final judgment existing at the time of appeal, not to a judgment rendered after the appeal is issued.
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Join FLexlaw to unlock all legal intelligenceHerpel, Inc. sued Ann Pfundston for allegedly slanderous remarks. The trial court granted Pfundston's motion to dismiss on July 22, 1957, ruling the s…
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This is an appeal from an order granting a motion to dismiss the complaint in a common law action. Herpel, Incorporated,, had sued Ann Pfundston for making certain allegedly slanderous remarks about: plaintiff. On defendant’s motion to dis*621miss, the trial judge entered an order granting such motion. Plaintiff appeals.
'We will not allude further in this opinion to the merits of appeal, as the court must ex mero motu dismiss the appeal.
The motion to dismiss was granted by the following order:
“This cause was duly presented by counsel after notice, and upon consideration thereof, It Is Ordered and Adjudged that defendant’s motion, filed June 4, 1957, to dismiss, is granted. It is the view of the Court that the spoken words described in the complaint are not actionable per se.
“Copy furnished counsel
“Done and Ordered this July 22nd, A.D.1957.”
Plaintiff, on July 24, 1957, filed a motion to amend the above order by either denying defendant’s motion, granting plaintiff leave to amend or granting plaintiff a new trial. This motion was granted, in part, by order dated August 12, 1957, in that leave to amend was given. Notice of appeal was filed August 14, which notice of appeal described the order of July 22, 1957. August 15, 1957, the following order was filed:
“It appearing to the Court that plaintiff's motion for leave to amend its complaint had been withdrawn with leave of the Court prior to the entry of the order of this Court of August 12, 1957, it is therefore
“Ordered and Adjudged that the order of this Court dated August 12, 1957 be, and the same hereby is, set aside and vacated to the extent it grants plaintiff leave to amend its complaint herein, and accordingly this cause stands dismissed with prejudice by the order of this Court of July 22, 1957.
“Done and Ordered this 15th day of August, 1957.”
The appellant did not appeal from the order of the Court entered the 15th day of August, 1957. Contention is made, however, that this order had the effect of making a final judgment of the order entered July 22, 1957. It will further be noted that the appeal was entered August 14th and directed to the order of July 22, 1957.
In the case of Pittsburg Steel Co. v. Streety, 1910, 60 Fla. 183, 53 So. 505, a verdict was entered, and a judgment was rendered on the verdict but not entered by the clerk. A writ of error. was issued. Then the plaintiff in error presented a certified copy of a recorded final judgment entered nunc pro tunc and dated subsequent to the writ. The Supreme Court, in its opinion, said:
“The writ of error purports to be issued to a final judgment; but, if there was no final judgment in existence when the writ of error was issued, it is ineffectual, and cannot be used to bring to the appellate court for review a final judgment nunc pro tunc subsequently rendered. A judgment in an action at law is rendered where it is entered or recorded in the minutes of the court during term time, or when in vacation it is put in form for such entry or record and is signed by the judge.”
See also Williams et al. v. Jacksonville, T. & K. W. Ry. Co., 1889, 25 Fla. 359, 5 So. 847; Renard v. Kirkeby Hotels, Inc., Fla.App.1958, 99 So.2d 719; and Brannon v. Johnston, Fla.1955, 83 So.2d 779.
We conclude that the order appealed from was not a final judgment, and that the appeal will have to be, and is, dismissed.
Appeal dismissed.
SHANNON, J., and GERÁLD, LYNN, A. J., concur.
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Wash. Sec. Co. v. Tracy's Plumbing & Pumps, Inc., 166 So. 2d 680 (Fla. 2d DCA 1964)…quisite to full appeal.2 Altiere v. The Atlantic National Bank of West Palm Beach, Fla.App.1963, 155 So. 2d 386; Weinmann v. Ligon, Fla.App.1958, 105 So. 2d 204; Baker v. Colley, Fla.App.1958, 104 So. 2d 473; Herpel, Inc. v. Pfundston, Fla.App.1958, 104 So. 2d 620. The Third District Court of Appeal has held likewise in Shotkin v. Deehl, Fla.App.1963, 148 So. 2d 538, (Law); cf. Mitchell v. Italian-American Club, Fla.App.1960, 122 So. 2d 228 (Chancery). The character of the order remains interlocutory whether…
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Altiere v. The Atl. Nat'l Bank OF W. Palm Beach, 155 So. 2d 386 (Fla. 2d DCA 1963)…an interlocutory order. We have previously held that such an order entered in an action at law is not a final judgment from which an appeal may be taken. Baker v. Colley, Fla.App.1958, 104 So. 2d 473; Herpel, Incorporated v. Pfundston, Fla.App.1958, 104 So. 2d 620; Weinmann v. Ligon, Fla.App.1958, 105 So. 2d 204. We do not have jurisdiction to entertain this appeal. Therefore, it must be dismissed ex mero motu. An appropriate order will be entered. SMITH, C. J., KANNER, J., and BARNS, PAUL D., Associate Jud…
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Fisher v. Dade Cnty., 127 So. 2d 132 (Fla. 3d DCA 1961)…n appeal from a final decree. It is apparent that the order appealed is an interlocutory order in chancery, since it merely grants the motion to dismiss. E.g., Weinmann v. Ligon, Fla.App.1958, 105 So. 2d 204; Herpel, Inc. v. Pfundston, Fla.App.1958, 104 So. 2d 620. We have therefore so. treated the appeal. . Metropolitan Dade County, Ordinance 57-25, section 17.06(A) (2).…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Renard v. Kirkeby Hotels, Inc., 99 So. 2d 719 (Fla. 3d DCA 1958)
- Brannon v. Johnston, 83 So. 2d 779 (Fla. 1955)
- Pittsburg Steel Co. v. Streety, 60 Fla. 183 (Fla. 1910)
- Williams v. Jacksonville, 25 Fla. 359 (Fla. 1889)