STATE OF OHIO EX REL. SAMUEL H. SQUIRE, SUPERINTENDENT OF BANKS OF THE STATE OF OHIO, IN CHARGE OF THE LIQUIDATION OF THE FIRST-CENTRAL TRUST CO., OF AKRON, OHIO,
v.
NANNIE L. COMSTOCK AND HER HUSBAND, F. A. COMSTOCK
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The Florida Supreme Court dismissed a writ of error because the lower court's order dismissing the case was not a final judgment. The court held that a formal final judgment was necessary before appellate review could be exercised.
An order dismissing a case is not reviewable by writ of error unless it constitutes a final judgment. A dismissal order that does not formally adjudicate the rights of the parties and terminate the case is merely an interlocutory order upon which a final judgment must still be entered.
“This order does not constitute a final judgment. The entry of the order does not make a final disposition of the case but is no more than an order upon which a formal final judgment that the plaintiff take nothing by his declaration and that the defendant recover his costs might be entered.”
Establishes the distinction between interlocutory dismissal orders and final judgments required for appellate review.
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Join FLexlaw to unlock all legal intelligenceThe State of Ohio, through its Superintendent of Banks, brought a liquidation action against defendants Nannie L. Comstock and her husband F. A. Comst…
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This writ of error is to review an order in the court below which reads as follows: “It is therefore, Considered, Ordered and Adjudged That the defendants’ supplemental motion for an order dismissing this cause be and the same is hereby granted, and that this cause be and the same is hereby dismissed, at the cost of the plaintiff.”
This order does not constitute a final judgment. The entry of the order does not make a final disposition of the case but is no more than an order upon which a formal final judgment that the plaintiff take nothing by his declaration and that the defendant recover his costs might be entered. Until there is an entry of a final judgment terminating the case, a writ of error will not lie to this court. Gates v. Haynor, 22 Fla. 325; Melbourne State Bank v. Gillette, 101 Fla. 235, 134 So. 46; Billo v. Phillips Co., 102 Fla. 364, 135 So. 810; Sections 4606, 4615, C. G. L. 1927.
*629This case is to be differentiated from the case of Cook v. Cook, 18 Fla. 634, because in that case the defendant had not been brought into court by service of summons or otherwise and therefore was not entitled to any judgment in his favor and the order of dismissal did not affect the right of plaintiff to sue over, while in the instant case the defendants were before the court with the right to have an adjudication which, if correct, would dispose of the case. So a final judgment was necessary to the disposition of this case. In the present state of the record the plaintiff may sue over and there is no judgment to preclude his recovery.
As the order above quoted to which writ of error was taken is not a final judgment, nor an order granting a new trial, there is no authority for review by writ of error. Therefore, the. writ of error herein is hereby dismissed. Bagdad Land & Lumber Co. v. Boyette, 103 Fla. 898, 138 So. 383; McKinnon v. Lewis, 72 Fla. 25, 72 So. 370.
Brown, C. J., Whitfield, Buford, Chapman and Adams, J. J., concur.
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FOY v. State Rd. Dep't of the State of Fla., 166 So. 2d 688 (Fla. 3d DCA 1964)…nd unsuitable material furnished by the defendant Road Department. The order appealed is interlocutory because it does not dispose of the cause but grants defendant’s motion on the ground of improper venue. State of Ohio ex rel. Squire v. Comstock, 146 Fla. 628, 1 So. 2d 564. This interlocutory order at common law is appealable under Rule 4.2, Florida Appellate Rules, 31 F.S.A., as an order “relating to venue.” The principal contention of the appellant is that because his action is ex con-tractu the court…
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Beaty v. Plant City, 100 So. 2d 830 (Fla. 2d DCA 1958)…PER CURIAM. Appeal dismissed under the authority of Sumerall v. Florida Tar & Creosote Corp., Fla.1951, 55 So. 2d 713, and State of Ohio ex rel. Squire v. Comstock, 146 Fla. 628, 1 So. 2d 564. KANNER, C. J., ALLEN and SHANNON, JJ., concur.…
Authorities Cited
- O. v. Gates, 22 Fla. 325 (Fla. 1886)
- Melbourne State Bank v. Gillette, 101 Fla. 235 (Fla. 1931)
- Cook v. Yancey S. Cook, 18 Fla. 634 (Fla. 1882)
- State v. Chillingworth, 103 Fla. 898 (Fla. 1931)
- Attaway McKinnon v. Amos E. Lewis, 72 Fla. 25 (Fla. 1916)
- Billo v. Dr. P. Phillips Co., 102 Fla. 364 (Fla. 1931)