Mizell Live Stock Co. v. J.J. Mccaskill Co.

• Decision Date: 20 April 1909
• Citation: 49 So. 501,57 Fla. 118
• Parties: MIZELL LIVE STOCK CO. v. J. J. McCASKILL CO.
• Court: Florida Supreme Court

49 So. 501

57 Fla. 118

MIZELL LIVE STOCK CO. v. J. J. McCASKILL CO.

Florida Supreme Court, Division A.

April 20, 1909

Headnotes Filed May 11, 1909.

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

Action by the Mizell Live Stock Company against the J. J. McCaskill Company. From a judgment of nonsuit, plaintiff brings error. Dismissed.

COUNSEL

C. L Wilson, for plaintiff in error.

W. W Flournoy, for defendant in error.

OPINION

SHACKLEFORD J.

In taking up this case for consideration, we find that the record discloses the fact that issues were joined between the parties, a jury impaneled, and a trial entered upon; but the only entry in the nature of a judgment is in this language:

'The plaintiff, on the trial of this case, after the ruling of the court sustaining the defendant's objection to the introduction in evidence of the paper under which plaintiff claimed title, stated in open court that on account of such ruling it was necessary for it to suffer a nonsuit, and requested that it be allowed to file a bill of exceptions, so as to have the said ruling of the court reviewed by the Supreme Court, and by order of the court such nonsuit was allowed, and plaintiff was granted 30 days from this date in which to present and file the bill of exceptions.'

This does not constitute a final judgment. It is at most a mere recitation of record that a nonsuit had been entered. It does not purport to declare the sentence of the law upon the entry of the nonsuit, which is an essential element of a final judgment. This case is ruled by Ropes v. Eldridge, 39 Fla. 47, 21 So. 570; also see Boggess v. Cox, 48 Mo. 278, and 1 Black on Judgments, § 115, there cited.

Section 1691 of the General Statutes of 1906 reads: 'Writs of error shall lie only from final judgments, except as specified in section 1695'--which latter section allows the writ to orders granting new trials. Section 1692 has the effect of making rules or summary orders of the court upon its officers to pay money a final judgment, and the next section permits certain discretionary orders reviewable after final judgment. Section 1697, under which the plaintiff in error has attempted to act says:

'1697. (1269.) Bills of Exceptions upon Nonsuit.--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.'

To a right understanding of the last-quoted section, and to...