Goldring v. Reid

• Decision Date: 05 November 1910
• Citation: Goldring v. Reid, 60 Fla. 78, 53 So. 503 (Fla. 1910)
• Parties: GOLDRING v. REID et al.
• Court: Florida Supreme Court

53 So. 503

60 Fla. 78

GOLDRING v. REID et al.

Florida Supreme Court, Division A.

November 5, 1910

On Rehearing, November 20, 1910.

Error to Circuit Court, Escambia County; J. Emmet Wolfe, Judge.

Action by N. Goldring against A. Reid and Prince Morris. Judgment for defendants, and plaintiff brings error. Dismissed.

Syllabus by the Court

SYLLABUS

Where a writ of error purports to be taken to a final judgment, and no such final judgment as will support a writ of error appears in the transcript, the court should not proceed to consider the errors assigned, but should dismiss the writ of error, whether a motion be made for that purpose of not since, except in case of an order granting a new trial under the statute, a writ of error may properly issue only to a judgment making a final disposition of the action in the trial court.

A judgment merely that the plaintiff be and is nonsuited is not such a final disposition of the action as will support a writ of error. The judgment should state that the action is dismissed, or that the defendant go hence without day, or that the plaintiff take nothing by the action, or other equivalent expressions adjudicating that the action as instituted is at an end.

COUNSEL John C. Avery, for plaintiff in error

Jones &amp Pasco, for defendant in error.

OPINION

SHACKLEFORD J.

In taking up this case for consideration, we find that the record discloses the fact that issue was joined between the parties, a jury impaneled, and a trial entered upon, during the course of which the plaintiff announced that by reason of certain rulings of the trial court it had become necessary for him to suffer a nonsuit; but the only entry in the nature of a judgment is in the following language:

'And it is ordered and adjudged by the court that the said petitioner be, and he is hereby, nonsuited accordingly, and that the defendants to have and recover their costs herein, and have execution therefor. Thereupon, upon petitioner's notice, it is ordered that he have sixty (60) days within which to prepare and present his bill of exceptions.'

This does not constitute a final judgment, as we held in Mizell Live Stock Co. v. J. J. McCaskill Co., 57 Fla. 118, 49 So. 501. See the discussion and authorities cited therein, especially Boggess v. Cox, 48 Mo. 278, wherein it was held: 'Where a nonsuit is taken, in order to justify an appeal or writ of error, the judgment should be formally set out 'that it is by the court therefore considered and adjudged that the plaintiff take nothing by his writ, and that the defendant go thereof without day, and recover of the plaintiff his costs,' etc.'

This is squarely in line with our holding as to what constitutes a final judgment for the defendant. See Hall v. Patterson, 45 Fla. 353, 33 So. 982.

There being no final judgment, it necessarily follows that the writ of error must be dismissed.

WHITFIELD, C.J., and COCKRELL, J., concur.

TAYLOR, HOCKER, and PARKHILL, JJ., concur in the opinion.

On Rehearing.

WHITFIELD C.J.

A motion has been presented here to vacate the order dismissing the writ of error for want of final judgment. Treating such motion as a petition for rehearing, its suggestion that the judgment set out in the opinion is a final judgment, within the meaning of the statute under which writs of error are issued, will be considered. Section 1691 of the General Statutes of 1906 provides that 'writs of error shall lie only from final judgments, except as specified in section 1695,' which section allows 'writs of error from orders granting new trials.' Section 1697 provides that 'when, from any decision of the court on the trial of a cause in any court, it may become necessary for the plaintiff to suffer a nonsuit, the facts, points or decisions may be reserved for the decision of the appellate court by bill of exceptions as in other cases.' This latter section does not authorize a writ of error, but only a bill of exceptions in nonsuits for the review of the appellate court as in other cases.

Where a writ of error purports to be taken to a final judgment, and no such final judgment as will support a writ of error appears in the transcript, and court should not proceed to consider the errors assigned, but should dismiss the writ of error, whether a motion be made for the purpose or not since, except in case of an order granting a new trial under the statute, a writ of error may properly issue only to a judgment making a final disposition of the action in the trial court. Blount v. Gallaher, 22 Fla. 92; Gates v. Hayner, 22 Fla. 325; Johnson v. Polk County, 24 Fla. 28, 3 So. 414; Ropes v. Lansing, 49 Fla. 225, 38 So. 177; Dexter v. Seaboard Air Line R. Co., 52 Fla. 250, 42 So. 695; Blanton v. West Coast Ry. Co., 58 Fla. 169, 50 So. 945; Pensacola Bank & Trust Co. v. National Bank of St. Petersburg, 58 Fla. 340, 50 So. 414. A judgment that the plaintiff be and is hereby nonsuited may be an adjudication of the attitude or status of the plaintiff with reference to the action, but it is not such a final disposition of the action as that it will support a writ of error. In addition to the order that the plaintiff be and is nonsuited, the entry should state the judgment of the law expressed through the court that the action be dismissed, or that the defendant go hence without day, or that the plaintiff take nothing by the action, or other equivalent expressions adjudicating, not that the plaintiff is adjudged to have failed to prosecute the action, but that the action as instituted is at an end. The ordering of the...