Whitaker v. Wright , 98 Fla. 500 ( 1929 )

In this case there was a motion to dismiss the writ of error.

The writ of error is sued out to an order vacating and setting aside an order of non-suit and reinstating the case on the docket. The plaintiff in error contends that such order vacating and setting aside the order of non-suit and reinstating the cause on the docket is a final judgment to which writ of error will lie.

The motion to dismiss is upon the ground that the writ of error is not sued out to a final judgment.

The result of an order setting aside and vacating an order of non-suit and reinstating the cause on the docket of the court, if the court has jurisdiction of the parties and the subject matter of the suit, has the effect of placing the suit and the parties before the court occupying the same status which they occupied before the judgment of non-suit was entered and the parties may proceed to a final judgment, the defendant maintaining his right to assign the order vacating and setting aside the order of non-suit as error, if he sees fit to do so, or if he conceives it to be true that the court has lost jurisdiction either of the parties or of the subject matter of the litigation by the order of non-suit, or otherwise, he may raise this question by proper pleadings properly and duly interposed. The appellant is not deprived of any right to contest the merits of the cause in the lower court.

We think that the judgment could in no sense be considered a final judgment from which writ of error lies. See Haley v. Haley, 93 N.C. 195, and cases there cited. Also see Bain, Administrator, v. Bain, 106 N.C. 239.

For the reason stated, the motion to dismiss should be granted and it is so ordered.

Dismissed.

WHITFIELD, P. J., AND STRUM, J., concur.

TERRELL, C. J., AND ELLIS AND BROWN, J. J., concur in the opinion and judgment.