P. A. DEMENS, APPELLANT,
v.
NAT POYNTZ, APPELLEE
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The Florida Supreme Court dismissed an appeal as premature because it was taken from a referee's findings rather than a formal final judgment. The court emphasized that appeals must be based on a final judgment or decree, not merely the initial findings of a referee.
An appeal cannot be taken from a referee's findings; it must be taken from a formal final judgment or decree.
“We do not say whether or not the stipulation filed in this court and assigned by counsel for the respective parties, covers the absence of a citation and service thereof, but there is a defect which makes the appeal premature, and which we would take notice of had we opened the record to dispose of the cause on its merits.”
The court notes a defect making the appeal premature, independent of the citation issue.
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Join FLexlaw to unlock all legal intelligenceThe appellee moved to dismiss the appeal due to a lack of notice or citation. The case was tried by a referee who issued a "decision" stating a findin…
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Raney. C. J.:
Appellee moved to dismiss the appeal because it was taken without notice or citation.
We do not say whether or not the stipulation filed in this court and assigned by counsel for the respective parties, covers the absence of a citation and service thereof, but there is a defect which makes the appeal premature, and which we would take notice of had we opened the record to dispose of the cause on its merits.
The cause was tried by a referee. Iiis “ decision,” as it is styled by him, is, after giving the style of the cause, as follows: “I find for the plaintiff and assess his damages at eight hundred and nine dollars and eighty-eight cents, ($889.88.) Aug. 3, 1888.” This is not a final judgment, it is simply the referee’s finding. The statute, McClellan’s Digest, á and 5, contemplates both findings and a judgment in cases at law, and findings and decree in cases in equity. The term decision is used in the statute at least once as convertible with that of findings.
This case is at law, and the meaning of the statute is, that there shall be a formal final judgment by the referee,, following the form of judgments at law as far as applicable. Until there has been such a judgment, there can be no appeal. The appeal is from the judgment or decree, not from the findings. Section 9, p. 858 McC.’s Digest.
The appeal is dismissed.
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Ellis v. State, 100 Fla. 27 (Fla. 1930)…527, 78 So. R. 526; Pensacola [*30] Lodge, etc., v. State, 74 Fla. 498, 77 So. R. 613; 86 So. R. 506; Gordon v. State, 86 Fla. 255, 97 So. R. 428; Kauz v. State, 124 So. R. 177. See also State v. Barnes, 24 Fla. 153, 4 So. R. 560; Demens v. Poyntz, 25 Fla. 654, 6 So. R. 261. While there might be some ground for relaxing this rule somewhat as to the record evidence of judgment of courts that are not courts of record, such as justice and municipal courts, and in which the entries are usually very meagre and…
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Milton v. Danford, 100 Fla. 761 (Fla. 1930)…59 Fla. 295, 52 So. R. 362; McLeod v. Citizens Bank of Live Oak, 61 Fla. 343, 56 So. R. 190. It has been definitely held by this Court that an appeal does not lie in a case at law before a referee except from a final judgment. See Demens v. Poyntz, 25 Fla. 654, 6 So. R. 261; Jones v. Tyler, 58 Fla. 290, 51 So. R. 283. The majority opinion, however, deals with the case on its merits as if Section 4615, Comp. Gen. Laws, supra, applies-to an order granting a new trial by a referee. The provisions of that se…