Opinion
February 1, 1952. Rehearing Denied March 4, 1952.
Appeal from the Circuit Court for Hillsborough County, Henry C. Tillman, J.
Mabry, Reaves, Carlton, Anderson, Fields Ward, Tampa, for appellant.
Cooper Cooper, Tampa, and Bryant Martin, Lakeland, for appellee.
We have before us for consideration a motion filed by the defendant below to dismiss an appeal taken by the original plaintiff in the cause.
The facts necessary to a decision are that plaintiff, a commercial tomato grower, sued the defendant, a commercial seed company, to recover damages alleged to have been sustained by the plaintiff because of a crop failure resulting from the defendant's selling to him an inferior and misbranded type of tomato seed. The complaint, as finally amended, contained four counts, two of which sounded in contract and two in tort. To the declaration the defendant filed numerous defenses, among which was the defense that the tomato seed was sold to the plaintiff, and accepted by him, upon the express condition that the seller should not be held liable for non-productivity of the seed or for the crop failure but that its warranty should extend, and that only to the extent of the purchase price, to the fact that the seeds sold were as described in the container.
The plaintiff moved to strike the latter defense upon the ground that it stated no defense to the action. The trial court denied the motion to strike, and the plaintiff thereupon filed the following motion:
"Comes now the plaintiff in the above stated cause, and shows that under the Court's rulings upon the pleadings it is impossible for the plaintiff to prevail; and particularly so in view of the holding of the Court that the use of the disclaimer or nonwarranty clause in the invoice, on the packages, and in the sales ticket, relieves and exempts the defendant from liability. It would, therefore, be useless for the plaintiff to incur the expense of a trial and the additional expense incident thereto of preparing a larger record which would of necessity include the trial proceedings and evidence to be reviewed by the Supreme Court.
"Wherefore, the plaintiff, continuing to protest the several rulings of this Honorable Court whereby motions of the plaintiff to strike defenses interposed by the defendant have been overruled, is under the circumstances compelled to and does hereby move, if the Court is not disposed to change said rulings, to forthwith enter a judgment against the plaintiff without prejudice to plaintiff's right of review on appeal, in order that appeal may be immediately taken and at comparatively small cost."
After a hearing upon the foregoing motion for judgment the trial court entered the following order or judgment:
"The above stated cause came on this day to be heard upon plaintiff's motion showing that in view of the Court's rulings upon pleadings it would be impossible for him to prevail at a trial, and therefore asking that if the Court is not disposed to change said rulings, judgment against the plaintiff be forthwith entered without prejudice to the plaintiff's right of review on appeal.
"Upon due consideration, it appears to the Court that the method adopted by the plaintiff is a speedy and comparatively inexpensive method of obtaining the judgment of the Supreme Court upon the vital defenses which this Court has refused to strike upon motion of the plaintiff.
"It is therefore ordered and adjudged that, without prejudice to plaintiff's right of review on appeal, plaintiff take nothing by his plaint and that the defendant go hence without day."
Subsequently, the plaintiff appealed from this judgment. Thereafter, the defendant moved in this court to dismiss the appeal upon the grounds:
1. The judgment and motion on which it is based affirmatively show an indirect attempt to confer jurisdiction on the Supreme Court with respect to an order entered in a common law suit, which is interlocutory in character.
2. The common law order appealed from is interlocutory in character and hence is non-appealable.
3. The judgment is non-appealable because it is a voluntary final judgment determining all issues in the case and was entered by consent of the party who now attempts to appeal therefrom.
It is settled in this jurisdiction that an appeal will not lie from an interlocutory order or judgment entered in a common law action. As to when a judgment attains such a degree of finality that it will support an appeal, the rule is that a final judgment is one that adjudicates the merits of the case and disposes of the action; that puts an end to the suit. Freeman on Judgments, 5th Ed. Sections 22, 26. As stated in Goldfarb v. Bronston, 154 Fla. 180, 17 So.2d 300, 301 "* * * at common law, there were "two prerequisites to the right of review by writ of error: There must have been, not only a finality of the cause in the inferior court, but there must have entered into that judgment the element of involuntariness' (Mizell Live Stock Co. v. J.J. McCaskill Co., 57 Fla. 118, 120, 49 So. 501) * * *." Compare Foley v. State, Fla., 50 So.2d 179.
As we read the record in the case before us, the judgment appealed from was entered as the behest of the plaintiff. It was rendered upon the complaint and only a portion of the many defenses filed by the defendant, leaving the remaining defenses without disposition. It was entered upon motion of the plaintiff for the purpose of allowing him to test the legal sufficiency of only the defenses setting up non-liability because of the non-warranty by the seller, without regard to any of the other defenses interposed to the complaint. A holding by this court that the said special defenses were not legally sufficient would not put an end to the litigation, because of the existence in the record of other defenses which have not been attacked by the plaintiff, and as to which, in the event of such a ruling, the plaintiff would undoubtedly demand a jury trial.
In the light of our previous decisions, we hold that the judgment before us is not such a final judgment as will support an appeal, for a judgment is final only when it adjudicates the merits of the cause and disposes of the pending action, leaving nothing further to be done but the execution of the judgment. Compare Howard v. Ziegler, Fla., 40 So.2d 776. Any other conclusion in respect to the finality of the judgment would necessarily lead to an affirmance of the judgment without regard to the sufficiency or insufficiency of the special defenses under attack, for admittedly, there are in the record certain defenses the validity of which have never been questioned, and which would be sufficient to entitle the defendant to prevail under a judgment, which, if accepted as "final" would necessarily have to adjudicate the merits of the cause and dispose of the pending action, leaving nothing further to be done but the execution of the judgment. Howard v. Ziegler, supra.
The motion to dismiss the appeal is granted without prejudice in the lower court to final judgment from which an appeal may be prosecuted by any aggrieved party.
It is so ordered.
TERRELL, CHAPMAN, THOMAS, HOBSON, ROBERTS and MATHEWS, JJ., concur.