Williams v. Hutchinson

• Decision Date: 30 June 1890
• Citation: 26 Fla. 513,7 So. 852
• Parties: WILLIAMS v. HUTCHINSON. CAMPBELL et al. v. SAME. BOLEY et al. v. SAME. SOUTHERN SPRING BED CO. v. SAME.
• Court: Florida Supreme Court

7 So. 852

26 Fla. 513

WILLIAMS v. HUTCHINSON.

CAMPBELL et al. v. SAME.

BOLEY et al. v. SAME.

SOUTHERN SPRING BED CO. v. SAME.

Florida Supreme Court

June 30, 1890

Appeal from circuit court, Alachua county; J. J. FINLEY, Judge.

Syllabus by the Court

SYLLABUS

1. An order dissolving an ancillary attachment is a final judgment at law, from which an appeal lies.

2. An order dissolving an ancillary attachnent is a final judgment although it does not expressly dismiss the attachment proceedings. Lyman v. Alexander, 9 Fla. 489 disapproved.

3. A suggestion or statement in the brief of counsel that an order appearing in the appeal transcript was taken from the motion docket is not evidence that the order was not duly recorded in the minutes of the term of the court at which it appears from the transcript that the motion was heard and determined such transcript being certified by the clerk as containing a correct transcript of the 'record of the judgment.'

4. An order duly entered upon the record of a term of the circuit court, and omitting the title of the cause, and the signature of the judge, in the following language: 'It appearing that notice was given of this motion, and the same being argued, it is ordered that the motion be granted; to which ruling counsel for plaintiff excepted, and the plaintiff is allowed thirty days to file bill of exceptions and perfect appeal,'--is a final judgment or an expression of final judicial action as distinguished from a direction for a mere formal entry by the clerk.

5. A citation to an appellee, issued by a clerk of a circuit court, is the process of the supreme court, and must be served by the sheriff of the latter court in person or by deputy, and service made by any other sheriff simply by virtue of his office, and not as deputy of the sheriff of the supreme court, is not legal; section 11 of the act of February 10, 1832, (section 4, p. 937, McClel. Dig.,) having been repealed by the act of August 1, 1868, (section 3, p 937, McClel. Dig.)

6. Where process of the supreme court is returned as served by the sheriff of a county, who is, however, not the sheriff of that court, and a motion is made to amend the return so as to show that it was served by the sheriff of the supreme court through him as deputy, and the only proof of such deputation is that the latter sheriff delivered to a predecessor of the sheriff claimed to be such deputy a paper constituting such predecessor and his successors in office his deputy to execute all process of the supreme court in the county of which he was sheriff, and a certificate of the sheriff of the supreme court stating, in effect, his conclusion from the execution and delivery of the appointment to the predecessor that the sheriff making the service was and is his deputy, the motion should be denied, as the proof does not show the person making the service received or accepted the paper, or other appointment of himself as deputy.

7. Where there has been no legal service of a citation 25 days before the term of the supreme court, to the first day of which it was made returnable, nor was the writ placed in the hands of an officer authorized to serve it, a new citation, returnable to a day in term, will not be granted by that court, but the appeal will be dismissed.

COUNSEL Taylor & Carter and W. W. Hampton, for appellants.

S. Y. Finley, for appellee.

OPINION

RANEY C.J.

The attachment proceeding in each of the above cases is ancillary to the personal action of assumpsit instituted contemporaneously. Circuit court rule 80. The appeals are from orders dissolving the attachments.

In Jeffreys v. Coleman, 20 Fla. 536, it was held that when an ancillary attachment is issued, upon which property is seized, an order of the court dissolving the attachment is a final judgment, from which an appeal lies, as it is a final determination of the attachment or ancillary proceeding. Kennedy v. Mitchell, 4 Fla. 457.

The first ground of the motion to dismiss is that the record does not show that a final judgment has been rendered by the circuit court. The transcript of the record before us shows an order dissolving an attachment, which order is signed by the judge; and from the certificate of the clerk to the transcript we must infer that this order was duly recorded in the minutes of the special term of the court, at which it seems the several motions were heard and determined. The suggestion in the brief of counsel for appellee that the order 'was taken from the motion docket' is, in view of this certificate of the clerk to the effect that it is a correct transcript of the 'record of the judgment,' no evidence that the order was not put by the clerk upon the record of the court as its judgment dissolving the attachment.

The order, omitting the signature of the judge, is as follows: 'It appearing that notice was given of this motion, and the same being argued, it is ordered that the motion be granted; to which ruling counsel for plaintiff excepted, and the plaintiff is allowed thirty days to file bill of exceptions and perfect appeal.' This order, appearing upon the record of a term of the circuit court at which it was made, which record must be assumed to have been duly approved by the judge, is, we think, a sufficient, though inartificial, expression of final judicial action dissolving the attachment, and should be taken as such, and not as a mere direction for a more formal entry by the clerk on the minutes or record of the term; and this, even though the latter might have been the intention of the judge when he wrote and signed the order. Nor do we now see that the same order made by a judge acting at chambers in vacation would not be a sufficient expression of a final judicial determination to dissolve an attachment, and operate to do so. There is nothing in these conclusions inconsistent with the decision in Sedgwick v. Dawkins, 17 Fla. 811.

It seems to have been decided in Lyman v Alexander, 9 Fla. 489, that an order professing merely to dissolve an attachment does not, though made before plea, constitute a final judgment, from which an appeal lies, but that to do so it must also expressly dismiss the suit. This idea is based upon the language of the statute, which is: 'When any suit shall be commenced by attachment, and the same, on motion, be dissolved before plea to the action, then, in every such case, the suit shall abate, and be dismissed from the court.' Section 27, p. 116, McClel. Dig. The reasoning of the court is that, until the formal order of dismissal of the suit is entered, the order of dissolution is...