Wolf v. Cleveland Elec. Co.

• Decision Date: 01 April 1952
• Citation: 58 So.2d 153
• Parties: WOLF v. CLEVELAND ELECTRIC CO., Inc.
• Court: Florida Supreme Court

Page 153

58 So.2d 153

WOLF v. CLEVELAND ELECTRIC CO., Inc.

Supreme Court of Florida, Special Division B.

April 1, 1952.

Murrell & Murrell, Jacksonville, for appellant.

Wm. Joe Sears and Eli Fink, Jacksonville, for appellee.

MATHEWS, Justice.

The appellee filed a motion to dismiss an appeal in this case upon the following grounds:

'It affirmatively appears from the record herein that Final Judgment in this cause was entered for the Defendant in the Court below on November 24, 1950; that no appeal from said Final Judgment has been taken and that the time for taking such appeal has long since expired.

'Said appeal is frivolous.'

The important question is whether or not the order of the Circuit Court on November 24, 1950, was a final judgment.

The order of the Court was as follows:

'This cause came on to be heard this day on defendant's demurrer to plaintiff's second amended declaration, and the same having been argued by counsel for the respective parties, and it appearing to the Court that the specifications in contract documents referred to in the declaration, paragraph 2100-10, affirmatively show that some of the equipment required for the construction of the job which plaintiff contends he was hired to perform, to-wit, two 37500 KVA transformers and certain material and equipment for 66 KV substations and two turbine generator units and accessories were not contracted to be delivered within one year from the date of the alleged contract, and it appearing to the Court that this makes the time of performance beyond the period of one year and therefore places the alleged contract upon which plaintiff bases his cause of action within the statute of frauds, to-wit, Section 725.01, F.S.A., and the Court being advised in the premises, it is, upon consideration thereof,

'Ordered and Adjudged that defendant's Demurrer and motion to strike be and the same are hereby granted, and it appearing to the Court that the plaintiff cannot further plead herein as a matter of law, it is, therefore,

'Further Ordered and Adjudged that final judgment herein be and the same is hereby entered for and in behalf of the defendant.'

The above order was a final judgment from which an appeal could have been taken. "Final judgment' means the finish of the judicial labor, pronouncement of the ultimate conclusion of the court upon the case * * *.' Foley v. State, Fla., 50 So.2d 179, 186.

The time fixed by the statute within which an appeal must be taken from a final judgment is jurisdictional and where an appeal is not taken within the time required, no jurisdiction is conferred on the appellate court. In re Warner's Estate, 159 Fla. 675, 32 So.2d 461.

In this case a petition for rehearing was filed and other proceedings had. In the course of these other proceedings after the above final judgment was...