65 Fla. 475 | Fla. | 1913
A petition was filed by the plaintiff in error for an alternative writ of mandamus against
“Upon reading and considering the foregoing petition for an alternative writ of mandamus, it is ordered that the prayer of said petition be and the same is hereby refused and denied. ,
Done and ordered, in vacation, this 12th day of February, A. D. 1913.”
The plaintiff in error seeks to have this order reviewed by writ of error. Right at the outset we find ourselves confronted with the question as to whether or not this order is of such a nature as to constitute a final judgment so as to support a writ of error, (he defendants in error contending that it is not. As we held in Carter v. Warnock, 57 Fla. 49, 49 South. Rep. 186, “In mandamus, as well as in other actions at law, there must be a final judgment before writ of error will lie to review the proceedings.” The decided weight of authority seems to be to the effect that an order denying or refusing an alternative writ of mandamus is not a final judgment. See 26 Cyc. 503, and 1 Black on Judgments (2nd Ed.), Sec. 32, and cases cited in the notes. Where the alternative writ is not only refused, but the court proceeds to pronounce judgment on the merits and dismisses the case this constitutes a final judgment which may be reviewed by writ of error. See 2 Spelling on Injunctions, etc.
“This cause was heard upon the petition of the plaintiff for an alternative writ of mandamus and upon consideration it was ordered that said writ be and the same is hereby refused, and that said petition be dismissed.”
We treated this as a final judgment, but the difference between the ruling in that case and the order in the instant case is obvious. It follows that the writ of error must be dismissed.