Schwenck v. Jacobs
| Citation | 160 Fla. 33,33 So.2d 592 |
| Parties | SCHWENCK et al. v. JACOBS et al. |
| Decision Date | 13 January 1948 |
| Court | United States State Supreme Court of Florida |
Appeal from Circuit Court, Dade County; George E. Holt Judge.
Ginsberg & Pilafian, of Miami, for appellants.
McKay Dixon, DeJarnette & Bradford, of Miami, for appellees.
The final judgment entered in this case was as follows: 'This cause coming on to be heard before me upon the Demurrer of the defendants Harry Jacobs, Ida Jacobs and Shirley Jacobs, by her guardian Harry Jacobs, to the plaintiffs' second amended declaration, and after argument of counsel for the respective parties, and the court being duly advised in the premises.
'It is thereupon ordered and adjudged that the said demurrer be and the same is hereby sustained.
'It is further ordered and adjudged that the plaintiffs take nothing by their writ in this cause, and that the defendants, Harry Jacobs, Ida Jacobs, and Shirley Jacobs by her guardian, Harry Jacobs, go hence without day and that the said defendants have judgment against the plaintiffs for their costs in this behalf expended.'
Thereupon the plaintiffs-appellants prosecuted an appeal and the appellees-defendants filed their motion to dismiss the appeal upon the ground that such judgment is not such a final judgment as is appealable, as provided by Section 59.02(1) Ch. 22854, Acts 1945.
Whether a judgment entered by the trial court is such a final judgment as will support an appeal depends largely upon its legal effect. If it is one final in nature and wherein time has commenced to run, whereby the trial court will lose jurisdiction to further consider or reconsider, then for purposes of appeal or writ of error it is a final judgment.
Of course an order that the demurrer be sustained, that a nonsuit be granted, or that defendant have judgment, is insufficient; in these instances more is required.
The limitations for taking an appeal or writ of error are with the object that the successful party will know when his litigation has ended and, also, that it be ended.
In Cook v. Cook, 18 Fla. 634, the plaintiff's case was dismissed by the Clerk for his failure to file a declaration, and the trial judge denied a motion of plaintiff to set aside judgment of dismissal and it was held that same constituted a final judgment of dismissal, and it was held that same constituted a final judgment sufficient to support a writ of error to a final judgment.
A judgment non prosequitur that 'plaintiff take nothing' and 'cause stand dismissed' held to support writ of error to final judgment. Hewitt v. International Shoe Co., 110 Fla. 37, 148 So. 533, 536.
A non-suit without an order of dismissal is not sufficient to support a writ of error to a final judgment. Goldring v. Reid, 60 Fla. 78, 53 So. 503.
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Womack v. Goldberg, 59-653
...(1958). But see Lykes Bros. Florida Co. v. King, 125 Fla. 101, 169 So. 595; Dudemaine v. Shaw, 153 Fla. 16, 13 So.2d 444; Schwenck v. Jacobs, 160 Fla. 33, 33 So.2d 592.2 Other federal cases which hold to the same effect are Jung v. K. & D. Mining Co., 356 U.S. 335, 78 S.Ct. 764, 2 L.Ed. 806......
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Employers' Fire Ins. Co. v. Continental Ins. Co.
...of trial cases, attorneys, on their own or by request, submit the judgment document.10 This result is consistent with Schwenck v. Jacobs, 160 Fla. 352, 33 So.2d 592 (1948), holding that the time for appeal relates to the legal effect of a judgment as tested by the lower court's loss of juri......
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Mindell v. Glenn.
...N.W. 963; City of Abilene v. American Surety Co., Tex.Civ.App., 73 S.W.2d 616; State v. Eigel, 210 Wis. 275, 246 N.W. 417; Schwenck v. Jacobs, Fla., 33 So.2d 592; In re Smith, 105 N.C. 167, 10 S.E. 982; Gresham v. Welsh, 17 Tex.Civ.App. 712, 41 S.W. 667; 2 Am. Jur., Appeal and Error, § 79. ......