Goldfarb v. Bronston

• Decision Date: 15 February 1944
• Citation: 17 So.2d 300,154 Fla. 180
• Parties: GOLDFARB v. BRONSTON et al.
• Court: Florida Supreme Court

17 So.2d 300

154 Fla. 180

GOLDFARB v. BRONSTON et al.

Florida Supreme Court

February 15, 1944

Rehearing Denied March 6, 1944.

Appeal from Circuit Court, Dade County; Paul D. Barns Judge.

E. F. P Brigham, of Miami, for appellant.

Edward E Fleming and Bernstein & Hodsdon, all of Miami, for appellee.

BROWN, Justice.

We are here dealing with a motion to dismiss an appeal taken by the plaintiff below from what purports to be a final judgment in favor of the defendant below on four counts of an eight count declaration in a common law action for damages.

On July 5, 1943 Irwin Goldfarb, by his next friend and father, Albert M Goldfarb, filed a declaration consisting of four counts against Walter Bronston, Jr., a minor, and Walter Bronston, Sr., to recover damages for serious personal injuries, alleged to have been permanent, caused by the negligence of the defendants. The defendants filed a demurrer to the declaration on August 2, 1943.

On October 25, 1943, Irwin Goldfarb having died as a result of the alleged injuries, his father Albert M. Goldfarb, as administrator of the estate of Irwin Goldfarb, filed a petition to revive said suit. On the same day, the Circuit Court made an order in which it stated that it appearing to the court 'that the cause of action therein sued on survives said death,' the cause 'is hereby revived in the name of Albert M. Goldfarb as administrator of the estate of Irwin Goldfarb deceased, and the plaintiff's pending declaration in the cause is amended by the substitution of this new party plaintiff in lieu of the deceased plaintiff, Irwin Goldfarb.'

On the same date, October 25, 1943, the plaintiff administrator amended his declaration by adding four additional counts, claiming damages to the estate of Irwin Goldfarb as a result of his death, based on the prospective future earnings of Irwin Goldfarb which he would have earned after he had obtained his majority and during his life expectancy had he not died.

On November 1, 1943, the defendants filed an adoption and application of the demurrer previously filed to the original declaration to the 5th, 6th, 7th and 8th counts which had been filed as an amendment to the original declaration, and on the same day defendants filed their motion to strike the first four counts of the plaintiff's original declaration as amended upon the ground that the damages alleged in said counts were not recoverable by said administrator.

On November 19, 1943, the court granted the motion to strike the first four counts of plaintiff's declaration and the plaintiff sought to have this order reviewed by this court by certiorari, but the petition was by this court, on December 23, 1943, denied.

On December 28, 1943, the circuit court entered an order purporting to be a final judgment reading as follows:

'The Plaintiff having elected to stand on Counts One, Two, Three and Four of his declaration without amendment, the Court having stricken the same from Plaintiff's declaration; now, therefore, it is

'Considered, ordered and adjudged that the Plaintiff take nothing by said Counts One, Two, Three and Four of his declaration, and that, with respect to said Counts one, Two, Three and Four, the Defendants go hence without day, and that costs be and the same are hereby taxed against the Plaintiff concerning said Counts One, Two, Three and Four of his declaration.'

From this judgment plaintiff entered an appeal to this court. The cause is still pending in the court below on counts five, six, seven and eight of the declaration as amended. Appellees have filed their motion to dismiss this appeal on the ground that the order appealed from is not a final judgment; that there still remain issues of law and fact to be decided on the remaining four counts of the declaration; that the cause has not yet been finally disposed of, but must be tried by a jury in the lower court before a final judgment can be rendered.

Section 59.02, Florida Statutes 1941, F.S.A. reads as follows:

'Writs of error shall lie only from final judgments, except as specified in§§ 59.04 and 59.05 hereof.'

A perusal of Sections 59.04 and 59.05 shows that they have no application here, as one of them deals with orders granting new trials at law, and the other deals with cases wherein it becomes necessary for the plaintiff to suffer a nonsuit. It is needless to point out that appeals are now used instead of writs of error to review judgments at law as well as decrees in equity, but that change in the method of invoking appellate review does not enlarge the class of judgments or decrees which are subject to appellate review.

The rule is quite general throughout this country that writs of error or appeals in common law cases can be brought only upon a final judgment, and that interlocutory rulings and orders in common law cases can only be reviewed when the cause is brought before the appellate court by appeal from, or writ of error to, the final judgment, which is one that disposes of and terminates the entire cause. See 2 Am.Jur. 860; 30 Am.Jur. 895; 4 C.J.S., Appeal and Error, § 15, p. 78, § 92, p. 180, § 121, p. 241; Freeman on Judgments, 5th Ed. Vol. 1, pp. 43, 69 and 70.

This question was very thoroughly considered by this court in the case of State Road Department v. Crill, 99 Fla. 1012, 128 So. 412, 415. The opinion in that case was written by Supreme Court Commissioner Davis and was adopted as the opinion of the Court by all members of the Court without dissent. The holding in that case was that in a proceeding to condemn land for right of way purposes, together with sand to be taken from other land of the defendants for the filling in of the right of way, an order...