Whitaker v. Wright
| Decision Date | 27 September 1929 |
| Citation | 98 Fla. 500,123 So. 857 |
| Parties | WHITAKER v. WRIGHT. |
| Court | Florida Supreme Court |
Error to Circuit Court, Pinellas County; O. L. Dayton, Judge.
Action by Bertha J. Wright against O. J. Whitaker. An order vacating and setting aside an order of nonsuit and reinstating the cause on the docket was made, and defendant brings error.
On motion to dismiss the writ of error.
Motion granted.
Syllabus by the Court
Writ of error did not lie where order vacated order of nonsuit and reinstated cause on docket; it not being final judgment. Writ of error did not lie, where order was made vacating and setting aside order of nonsuit and reinstating cause on docket, since it was not a final judgment.
Anderson & Lewis, of St. Petersburg, for plaintiff in error.
W. G Ramseur, of St. Petersburg, for defendant in error.
In this case there was a motion to dismiss the writ of error.
The writ of error is sued out to an order vacating and setting aside an order of nonsuit and reinstating the case on the docket. The plaintiff in error contends that such order vacating and setting aside the order of nonsuit and reinstating the cause on the docket is a final judgment to which writ of error will lie.
The motion to dismiss is upon the ground that the writ of error is not sued out to a final judgment.
The result of an order setting aside and vacating an order of nonsuit and reinstating the cause on the docket of the court if the court has jurisdiction of the parties and the subject-matter of the suit, has the effect of placing the suit and the parties before the court occupying the same status which they occupied before the judgment of nonsuit was entered, and the parties may proceed to a final judgment, the defendant maintaining his right to assign the order vacating and setting aside the order of nonsuit as error, if he sees fit to do so, or, if he conceives it to be true that the court has lost jurisdiction either of the parties or of the subject-matter of the litigation by the order of nonsuit, or otherwise, he may raise this question by proper pleadings properly and duly interposed. The appellant is not deprived of any right to contest the merits of the cause in the lower court.
We think that the judgment could in no sense be considered a final judgment from which writ of error lies. See Hailey v. Gray, 93 N.C. 195, and cases there cited. Also see Bain, Administrator, v. Bain, 106 N.C. 239, 11 S.E. 327.
For the reason stated, the motion to dismiss...
To continue reading
Request your trial
-
Whitaker v. Wright
...the court thereby lost jurisdiction of the parties and the case. This is the third appearance of this case in this court. See Whitaker v. Wright (Fla.) 123 So. 857; Whitaker v. Wright (Fla.) 127 So. 306. Its first appearance here was upon a writ of error taken by defendant to the order rein......
-
Seaboard Oil Co. v. Chalk
...judgment, or for judgment non obstante veredicto, shall be made and prevail.' Section 4615(2905), Comp. Gen. Laws 1927. In Whitaker v. Wright, 98 Fla. 500, 123 So. 857, a writ error taken to an order vacating and setting aside an order of nonsuit and reinstating the case on the docket was d......
-
State Ex Rel. L. & L., Inc. Freight Lines v. Barrs
... ... jurisdiction of the cause and could have set aside and ... vacated the order of nonsuit. See Whitaker v ... Wright, 100 Fla. 282, 129 So. 889; and Whitaker v ... Wright, 98 Fla. 500, 123 So. 857 ... It ... being admitted that the civil ... ...
-
Serkowich v. Wardell
...of dismissal and reinstating a case, since it does not dispose of the whole proceeding, is not final but interlocutory. Whitaker v. Wright, 98 Fla. 500, 123 So. 857; Bain v. Bain, 106 N.C. 239, 11 S.E. 327; City of Goldsboro v. Holmes, 183 N.C. 203, 111 S.E. 1; Haygood v. Pinkey, 112 Okl. 3......