5 Fla. 447 | Fla. | 1854
delivered the opinion oí the Court':
This is an action of replevin, instituted in the Circuit Court for Marion County, by William D. Branch, administrator, &c., of Samuel E. Swilley,'deceased, against Littleberry Branch, to recover a stock of cattle, numbering about eighteen hundred. An affidavit and bond were filed, ■whether in accordance with the provisions of the statute or not, is a question not presented for our consideration. The writ was issued and levied, a summons was served upon defendant, a declaration was duly filed, and at the last term of said Court, the cause came on to be heard, when the defendant’s counsel “ moved the Court to quash the writ and declaration, for a variance between the writ and declaration,” and also moved the Court to dismiss the suit, for want of a sufficient affidavit and bond, and because a pluries writ bad been issued in said canse before declaration filed. Whereupon the Court, having heard the argument of counsel, and having considered the matter, overruled the motion to quash said writ and declaration, but sustained defendant’s motion to dismiss said suit, for want of a sufficient affidavit and bond. Whereupon the plaintiff, by his counsel, prayed an appeal, in open Court, and the said plaintiff, having executed a bond, according to law, and paid the costs, the same was allowed by the Court. After the appeal was taken, the next step in the case, as appears by the record, was a judgment, of the Court, in the following words, to-wit: “ It appearing to the satisfaction of the Court, by tbe order heretofore entered, dismissing said cause, that the defendant is entitled to a return of
A judgment is defined to be the sentence of the law pronounced by the Court, upon the matter appearing from the previous proceedings in the suit. Har. Law Dict., title, Judgment, page 255, 256. It is the conclusion that naturally and regularly follows from the premises of law, and fact. Jacob’s Law Dict., title, Judgment, page 551.
The action of replevin, (the defendant’s counsel very properly said,) is an extraordinary remedy, giyen by the statute to establish the right of possession, and to whomsoever the Court awards the possession, whether plaintiff or defendant, that is the conclusion of law, and it matters not whether that right of possession is established either by a trial upon the merits or by a default of the plaintiff. Suppose we admit the premises, does the conclusion that this is a final judgment follow ? It is precisely because this is an extraordinary remedy that it does not,; it will be readily admitted that in an ordinary case a judgment dismissing the suit is a final judgment, but the 11th section of the act of March 11th, 1845, the act under which this suit was brought, (Thompson’s Digest, page 390, No. 4,) declares that if it shall appear upon the non-suit of a plaintiff, or upon trial, or otherwise, that the defendant is entitled to a return of the goods, he shall have judgment there