Marsh v. Atlantic Coast Line Railroad

80 So. 307, 76 Fla. 534

Opinion

Whitfield, J.

The Circuit Court sustained a demurrer ' to an amended declaration. Another amended declaration was filed in four counts. Two counts were stricken on motion and demurrers to the other two counts were sustained “and the plaintiff allowed to amend as he may be advised on or before October Rule A. D. 1916.”

On November 6, 1916, the clerk of the Circuit Court at the instance of the defendant entered’ an order dismissing the cause “for failure on the part of the plaintiff to amond his declaration or file an amended declaration within the time allowed by the court for this purpose.” The plaintiff took writ of error. As the plaintiff did not amend his declaration, judgment final for the defendant upon the demurrer to the declaration may have been entered, Hower v. Lewton, 18 Fla. 328, to which final judgment a writ of error may have been taken; but the order of dismissal of the cause entered by the clerk after a demurrer to the amended declaration had been sustained, was unauthorized, and it is not such a final judgment as will support a writ of error to review the merits of the case, therefore the write of error is dismissed.

All concur.