DANIEL G. ANDERSON, APPELLANT,
v.
THE PRESBYTERIAN CHURCH OF GAINESVILLE, APPELLEE
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Daniel G. Anderson appeals a judgment of non-suit entered in his favor in Alachua County Circuit Court against The Presbyterian Church of Gainesville. The Florida Supreme Court dismisses the appeal for lack of a final judgment in the record, holding that a non-suit taken at the plaintiff's motion is not an appealable judgment and involves no exercise of judicial discretion on matters of law.
No appeal lies from a non-suit judgment entered upon the plaintiff's motion because: (1) appeals in common law cases require a final judgment in the record, which is absent here; (2) a non-suit is within the plaintiff's discretion and involves no judicial exercise of judgment on matters of law; and (3) the plaintiff cannot use errors in the record or bill of exceptions to reverse a judgment that was the necessary consequence of his own act.
“An appeal in a common law case lies only after final judgment, (5 Fla., 407,) and as in this case the record does not disclose a final judgment, the appeal must he dismissed.”
Establishes the foundational requirement that a final judgment must appear in the appellate record for an appeal to be properly maintainable.
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Join FLexlaw to unlock all legal intelligenceAnderson brought suit against The Presbyterian Church of Gainesville in Alachua County. The parties initially had demurrers heard, then amendments wer…
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delivered the opinion of the court.
This is an appeal from the fifth circuit. The case was heard in Alachua county.
There were judgments of the court upon demurrers of the plaintiff and defendant respectively. After this, amendments were permitted and the parties went to the jury. The plaintiff, after having offered certain evidence to sustain the issues joined upon his {part, saw proper to take a non-suit. Such was the final disposition of the case as it appears from a statement in the bill of exceptions. This judgment is properly no part of the bill of exceptions, and a mere recitation of the fact in the bill of exceptions that such a judgment was rendered cannot cure the want of the judgment in the record.
An appeal in a common law case lies only after final judg*593ment, (5 Fla., 407,) and as in this case the record does not disclose a final judgment, the appeal must he dismissed. This defect might be remedied by the court directing sua sponte a certiorari to bring up the judgment of non-suit, but we deem it unnecessary.
We cannot perceive how, when this judgment is entered upon the motion of the plaintiff, an appeal lies from it to this-court. The taking of anon-suit was a matter within the discretion of the plaintiff under the rules. It involved at the hands of the court no exercise of judicial judgment upon any matter of law involved in the ease, and was a judgment rendered independent of the facts or law of the case. If the plaintiff wished to avail himself of any of his objections to the rulings of the court as to the admissibility of testimony, or to its charge, he should take exceptions and proceed with his cause before the jury.' He cannot avail himself of his bill of exceptions or of other errors in the ’record to reverse the judgment of non-suit, which was the necessary consequence of his own act. 18 Wend., 172.
The appeal is dismissed with costs.
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The Merchs. Nat'l Bank of Jacksonville v. Isadore Grunthal, 38 Fla. 93 (Fla. 1896)…roper, duly certified by the Cleric of the [*98] -court who is the custodian of them, is the only evidence; and that in matters not of record, or in pais, the Judge’s certificate is the only evidence. Anderson vs. Presbyterian Church of Gainesville, 13 Fla. 592; Lovett vs. State, 29 Fla. 356, 11 South. Rep. 172; Brown vs. State, 29 Fla. 543, 10 South. Rep. 736; Tunno vs. International Railway & Steamship Co., 34 Fla. 300, 16 South. Rep. 180; Lamb vs. State, 73, Ga. 587. It follows, therefore, that where ma…
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Tunno v. The Int'l Ry. & S.S. Co., 34 Fla. 300 (Fla. 1894)
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Thoman v. Timmothy Ashley, 170 So. 2d 332 (Fla. 2d DCA 1964)…tly considered the merits of a similar case on appeal. See Dobson v. Crews, Fla. App.1964, 164 So. 2d 252, followed by the same court in Florida East Coast Ry. Co. v. Lewis, Fla.App.1964, 167 So. 2d 104. . See Anderson v. Presbyterian Church, 1869, 13 Fla. 592, 593. . Section 2.01, B’la.Stat., E.S.A. “The common and statute laws of England which are of a general and not a local nature, * * * down to the fourth day of July, 1776, are declared to be of force in this state; provided, the said statutes and c…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dawkins v. Carroll, 5 Fla. 407 (Fla. 1854)