Goldring v. Reid

Shackleford, J. In taking up this case for consideration we find that the record discloses the fact that issue was joined between the parties, a jury empanelled and a [79] trial entered upon, during the course of which the plaintiff announced that by reason of certain rulings of the trial court it had become necessary for him to suffer a non-suit, but the only entry in the nature of a judgment is in the following language: “And it is ordered and adjudged by the court that the said petitioner be, and he is hereby non-suited accordingly, and that the defendants do have and recover their costs herein, and have execution therefor. Thereupon, upon petitioner’s notice it is ordered that he have sixty (60) days within which to prepare and present his bill of exceptions.” This does not constitute a final judgment, as we held in Mizell Live Stock Co. v. J. J. McCaskill Co., 57 Fla., 118; 49 South. Rep. 501. See the discussion and authorities cited therein, especially Boggess v. Cox, 48 Mo. 278, wherein it was held: “Where a non-suit is taken, in order to justify an appeal or writ of error the judgment should be formally set out, 'that it is by the court therefore considered and adjudged that the plaintiff take nothing by his writ, and that the defendant go thereof without day and recover of the plaintiff his costs,’ etc.” This is squarely in line with our holding as to what .constitutes a final judgment for the defendant. See Hall v. Patterson, 45 Fla. 353; 33 South. Rep. 982. There being no final judgment, it necessarily follows that the writ of error must be dismissed. Whitfield, C. J., and Cockrell, J., concur. Taylor, Hocker and Parkhill, J. J. concur in the opinion.