MELBOURNE STATE BANK, A CORPORATION, PLAINTIFF IN ERROR,
v.
ELSIE F. GILLETTE, (CLYDE H. FLEWELLING, H. B. FLEWELLING, AND SAM R. SCOTT, SURETIES), DEFENDANTS IN ERROR
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Melbourne State Bank sought a writ of error to challenge an order vacating a judgment in a claim proceeding and remanding the property dispute to jury trial. The Florida Supreme Court dismissed the writ, holding that the order was neither a final judgment nor an order granting a new trial, and therefore was not appealable by writ of error.
The order is not appealable by writ of error because it is neither a final judgment nor an order granting a new trial at law, and statutory authority for writs of error does not extend to such orders.
“writs of error shall lie only from final judgments, except that upon the entry of an order granting a new trial at law, the party aggrieved may prosecute a writ of error”
Establishes the statutory limitation on appellate review by writ of error, restricting it to final judgments and new trial orders.
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Join FLexlaw to unlock all legal intelligenceAn execution on a judgment was levied on property claimed by a third party, Elsie F. Gillette. The judgment in the claim proceeding adjudicated the pr…
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It appears that execution under a judgment was levied upon property claimed by a third party. *236The judgment in the claim proceedings adjudicated the property to be subject to the execution. There was no motion for new trial in the claim proceeding. After the expiration of the term a motion was made to “vacate and set aside said judgment,” in the claim proceeding. On such motion the court “ordered and adjudged that said judgment in favor of Melbourne State Bank and against Elsie F. Gillette, Claimant, and her sureties, Clyde IT. Flewelling, H. B. Flewelling and Sara R. Scott, dated March 29th, 1928, be and the same is hereby vacated, and set aside. It is further ordered and adjudged that said cause be submitted to a jury of Brevard County, Florida, during the Fall Term of the Circuit Court, 1928, for trial of right of property between the Melbourne State Bank, Plaintiff in execution and the said Elsie F. Gillette, as claimant, and the Clerk is directed to place said cause on the docket of cases to be tried at said term. ’ ’
To such order-a writ of error was taken.
The statutes provide that “writs of error shall lie only from final judgments, except” that “upon the entry of an order granting a new trial at law, the party aggrieved # may * prosecute a writ of error.” Sections 4606, 4615, Compiled General Laws, 1927.
As the order above quotéd to which the writ of error was taken, is not a final judgment and is not “an order granting a new trial,” there is no authority for appellate review by writ of error, therefore the writ of error herein should be and is hereby dismissed.
Terrell and Davis, J.J., concur.
Buford, C.J., and Ellis, J., concur in the opinion and Judgment.
Brown, J., dissents.
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State v. Wright, 107 Fla. 178 (Fla. 1932)…udgment and make an order of reinstatement. Ex parte Jos. H. Bradley, petitioner, 7 Wall. 364-386, 19 U. S. (Law Ed.) 214. We have held that there is no authority for appellate review by writ of errot in this case. Melbourne State Bank v. Gillette, 101 Fla. 235, 134 So. 46. [*185] And mandamus will lie to compel a court to vacate a judgment, order or decree which it was entirely without jurisdiction to make, there being no adequate remedy by appeal, error or otherwise. 38 C. J. 637; Ex parte Jos. H. Bradle…
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Orange Belt Packing Co. v. Int'l Agric. Corp., 112 Fla. 99 (Fla. 1933)…d one a final judgment arising from a final order in a collateral proceeding connected with or occurring as supplementary to the main suit, the writ of error will be dismissed by the appellate court ex proprio motu. Melbourne State Bank v. Gillette, 101 Fla. 235, 134 Sou. Rep. 46. The primary object of a writ of error is not to try the issues between the parties, but rather to try the final judgment at law rendered by the court below, so as to test such judgment by the law. McKinnon v. Lewis, 60 Fla. 125,…
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Cent. Hanover Bank & Tr. Co. v. Pan-American Airways, Inc., 126 Fla. 736 (Fla. 1937)…al judgment that can be reviewed on writ of error, which in Florida, can only be issued to a final judgment or to an order granting a new trial, in cases wherein writ of error is the appropriate means of review. See Melbourne State Bank v. Gillette, 101 Fla. 235, 134 Sou. Rep. 46. While the second stage of an eminent domain proceeding is occupied merely by the judicial process of jury trial of the question of compensation and damages to be awarded to the owner whose property has been adjudged to be taken f…
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