Martin v. Hosmer

• Decision Date: 26 September 1929
• Citation: 124 So. 18,98 Fla. 485
• Parties: MARTIN v. HOSMER.
• Court: Florida Supreme Court

124 So. 18

98 Fla. 485

MARTIN v. HOSMER.

Florida Supreme Court, Division A.

September 26, 1929

Error to Circuit Court, Sarasota County; Paul C. Albritton, Judge.

Action by Clare C. Hosmer against T. R. Martin. Defendant's motion for new trial was overruled, and he brings error.

Writ of error dismissed.

Syllabus by the Court

SYLLABUS

Writ of error is dismissed sua sponte when no final judgment appears in record proper. When no final judgment appears in the record proper, a writ of error will be dismissed by the appellate court sua sponte.

COUNSEL

Burket & Fish and Harold H. Flower, all of Sarasota, for plaintiff in error.

Perry, Williams & Williford, of Sarasota, for defendant in error.

OPINION

ELLIS, J.

Clare C. Hosmer brought an action in the circuit court for Sarasota county against T. R. Martin in assumpsit. The declaration contained five common-law counts to which the defendant interposed two pleas, one appropriate to the action and the other not.

There was a trial, but the record contains neither verdict nor judgment. It discloses that a motion for a new trial was made by the defendant and the court overruled it. Thereupon the defendant took a writ of error. When no final judgment appears in the record proper, the writ of error will be dismissed by the appellate court sua sponte. See Flournoy v. Interstate Elec. Co., 61 Fla. 214, 55 So. 983; Strouse v. Hall, 62 Fla. 394, 56 So. 946; Zaring v. Humphreys, 68 Fla. 6, 65 So. 665.

Neither the record proper nor the bill of exceptions discloses either verdict or judgment, so the writ of error is dismissed.

It is so ordered.

TERRELL, C.J., and BROWN, J., concur.

WHITFIELD, P.J., and STRUM and BUFORD, JJ., concur in the opinion and judgment.