State Road Dept. v. Crill

• Decision Date: 05 May 1930
• Citation: 128 So. 412,99 Fla. 1012
• Parties: STATE ROAD DEPARTMENT v. CRILL et al.
• Court: Florida Supreme Court

128 So. 412

99 Fla. 1012

STATE ROAD DEPARTMENT v. CRILL et al.

Florida Supreme Court

May 5, 1930

Commissioners' Decision.

Error to Circuit Court, Alachua County; A. V. Long, Judge.

Proceedings by the State Road Department against Josephine E. Crill and others to condemn land for a right of way and to obtain a quantity of sand for filling in right of way for state road. An order was entered dismissing the petition so far as it relates to the condemnation of the sand, and the State brings error.

Writ of error dismissed.

See also, 96 Fla. 110, 117 So. 795.

COUNSEL

B. A. Meginniss, of Tallahassee, and Hampton &amp Hampton, of Gainesville, for plaintiff in error.

Charles P. Cooper, of Jacksonville, for defendants in error.

OPINION

DAVIS C.

It has been suggested by the defendants in error that the court should dismiss the writ of error in this cause upon its own motion, because the transcript of the record contains no final judgment to which a writ of error will lie.

Section 4606, Compiled General Laws of Florida, 1927, provides that 'Writs of error shall lie only from final judgments,' except from an order granting a new trial at law, and it is a rule of this court that where no final judgment appears in the record, whether a motion be made for the purpose or not the writ of error will be dismissed (Flournoy v. Interstate Elec. Co., 61 Fla. 214, 55 So. 983; S. A. L. Ry. Co. v. Bennett, 47 Fla. 215, 36 So. 86; Zaring & Co. v. Humphreys, 68 Fla. 6, 65 So. 665; Goldring v. Reid, 60 Fla. 78, 53 So. 503), and the court will not consider the errors assigned. Graves v. J. M. Harris & Bro., 61 Fla. 254, 54 So. 390; Goldring v. Reid, supra.

In the proceeding before us, the plaintiff in error sought to condemn certain land for right of way purposes for a state road, together with a certain quantity of sand to be taken from other land of the defendants in error for the purpose of filling in and building up a right of way for said state road. The defendants in error, in their answer to the petition filed by the plaintiff in error, took the position that said sand was not subject to condemnation under the statute under which the proceeding was brought. The state road department made a motion to amend its petition by striking therefrom all of those portions that related to the said sand, and for a default judgment against the defendants for failure to plead, answer, or demur to that portion of the petition relating to condemnation of land for a right of way. Upon hearing this motion the court, instead of granting or denying it, ordered:

'That the Petition for Condemnation filed by the Petitioner under date of December 30, 1927, in so far as it seeks to condemn 6000 cubic yards of sand to be taken from certain property in said Petition described, be dismissed, and that said cause do proceed with the condemnation of the land for Right-of-way purposes as set out and provided in and by said Petition for Condemnation;

'And it is further Ordered that the Judge of this Court do proceed to draw the names of 20 persons from the box from which a Jury of twelve shall be impaneled to try what compensation shall be made to the Defendants for the property sought to be appropriated in accordance with law, making the venire returnable before this Court at the Court House in the City of Gainesville, Florida, on Monday, October 8, 1928, at ten o'clock A. M.'

For the purpose of having this order or judgment reviewed, the state road department applied for and obtained a writ of error. In response to the suggestion made by the defendants in error that the writ of error be dismissed, the plaintiff in error, with considerable force, has urged that, under the statute, it was necessary for the writ to issue within thirty days from the making of the order; that that part of the petition relating to the sand, having been previously dismissed, in the final judgment for a right of way, the question of condemnation of sand would not be referred to; that the petition includes two separate and distinct causes of action, one being for sand to be taken from certain described real estate, and the other for a right of way on a separate and distinct parcel of real estate, and that the order of the court dismissing that part of the petition relating to sand left nothing further for determination with regard to that particular cause of action so dismissed, and such order was a final judgment within the meaning of our statute authorizing the suing out of a writ of error from a final judgment.

There is authority to support the proposition that where a distinct and separate branch of the cause is finally determined, although the suit is not ended, there may be an appeal ( Nichol v. Dunn, 25 Ark. 129; State v. Shall, 23 Ark. 601; Klever v. Seawall (C. C. A.) 65 F. 373; Sharon v. Sharon, 67 Cal. 185, 7 P. 456, 635, 8 P. 709; 2 Enc. Pl. & Pr. 70; Bunnell v. Berlin Iron Bridge Co., 66 Conn. 24, 37, 33 A. 533; Guarantee Trust & Safe-Deposit Co. v. Philadelphia, etc., R. Co., 69 Conn. 709, 38 A. 792, 38 L. R. A. 804; Bank of Mobile v. Hall, 6 Ala. 141, 41 Am. Dec. 41; Neall v. Hill, 16 Cal. 145, 76 Am. Dec. 508; Ware v. Richardson, 3 Md. 505, 56 Am. Dec. 762; Wynn v. Tallapoosa County Bank, 168 Ala. 469, 53 So. 228; Howell v. Randle, 171 Ala. 451, 54 So. 563; Moulton v. Cornish, 138 N.Y. 133, 33 N.E. 842, 20 L. R. A. 370) and that where a suit contains several distinct causes of action, and a judgment as to some is final in its terms, an appeal may be taken as to the causes on which the judgment is final (Scriven v. North [C. C. A.] 134 F. 366; St. Jean v. Molleur, 40 Canada S. C. 139; Teaff v. Hewitt, 1 Ohio St. 511, 520, 59 Am. Dec. 634) and it is said, in 2 Std. Enc. of Procedure, 164, that

'If the issues or questions in controversy can be separated and decided independently without prejudicing the rest of the case, there may be a final judgment disposing of a part of the case.'

This authority, however, recognizes the general rule to be that a final decision disposes of the entire case.

Mr. Freeman, in his work on Judgments (vol. 1, 5th Ed.) p. 43, § 26), says:

'Sometimes several issues of law and of facts are presented for the consideration of the court in the same suit or proceeding. In such case there can be no judgment from which an appeal can be taken while it remains necessary for the court to determine some issue of law or of fact.'

The same author on page 70 (§ 45) says:

'The general rule recognized by the courts of the United States and by the courts of most, if not of all, the states is, that no judgment or decree will be regarded as final within the meaning of the statutes in reference to appeals, unless all the issues of law and of fact necessary to be determined were determined, and the case completely disposed of, so far as the court had power to dispose of it.'

And on page 69, § 42, that:

'Decisions upon demurrers to the pleadings or upon pleas in abatement, and all orders disposing of some of the issues while others remain to be decided' are examples of interlocutory judgments.

To the same effect, see 3 C.J. 446, 502. And it has been held that a final judgment, order, or decree is one that puts an end to the action or cause and leaves nothing to be determined (3 C.J. 441; Oldroyd v. McCrea, 65 Utah, 142, 235 P. 580, 40 A. L. R. 230; Riley v. Jarvis, 43 W.Va. 43, 26 S.E. 366; Ft. Worth Imp. Dist. No. 1 v. Ft. Worth, 106 Tex. 148, 158 S.W. 164, 48 L. R. A. (N. S.) 994; St. L. etc., R. Co. v. So. Exp. Co., 108 U.S. 24, 2 S.Ct. 6, 27 L.Ed. 638; Case v. Ladd, 2 Allen (Mass.) 130; 2 R. C. L. 39), and that a judgment or decree is not final or appealable unless it determines the merits of the controversy or the rights of the parties and leaves nothing for future determination. 3 C.J. 441; Billings v. Charlotte Observer, 150 N.C. 540, 64 S.E. 435; Sullivan v. A. B. & D. of U.S., etc. (C. C. A.) 6 F. (2d) 1000, 42 A. L. R. 503; Trade Discount Co. v. J. R. Cox & Co., 143 Ky. 515, 136 S.W. 901; Luxton v. North River Bridge Co., 147 U.S. 337, 13 S.Ct. 356, 37 L.Ed. 194.

The reason assigned by some of the courts for the rule requiring all of the issues to be finally disposed of before an appeal shall be taken is to avoid delay and confusion arising from multiplied and successive appeals. Luxton v. North River Bridge Co., supra; Payne v. Satterfield, 114 Tenn. 58, 84 S.W. 800; Sholty v. Sholty, 140 Ill. 81, 29 N.E. 1041.

Coming now to the decisions of this court, we find that a final judgment is one that adjudicates the merits of the cause and disposes of the action (Graves v. J. M. Harris & Bro., supra; Bell v. Niles, 60 Fla. 31, 53 So. 714); that puts an end to the suit (Branch v. Branch, 5 Fla. 447 450); and that at common law, there were 'two prerequisites to the right of review by writ of error: There must have been, not only a finality of the cause in the inferior court, but there must have entered into that judgment the element of involuntariness' (Mizell Live Stock Co. v. J. J. McCaskill Co., 57 Fla. 118, 120, 49 So. 501), and in Gates v. Hayner, 22 Fla. 325, it is said so long as the action is pending in the lower court, 'this court cannot touch the case.' In the last-cited case no formal judgment had been entered upon an order sustaining the demurrer to the declaration, and plaintiff in error does not question the wisdom of that decision. However, the language used is broad enough to apply to any case, and when we think of the different 'causes of action' that...