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U.S. Supreme Court

Brown v. Union Bank of Florida, 45 U.S. 4 How. 465 465 (1846)

Brown v. Union Bank of Florida

45 U.S. (4 How.) 465




Where there has been no service of a citation or no final judgment in the court below, the case must be dismissed on motion.

A motion was made by Mr. L. A. Thompson to dismiss this case upon two grounds:

1. Because there was no service of the citation upon the defendant in error.

2. Because the judgment of the court of Appeals of Florida remanding the cause for a new trial below was not a final judgment.

The case was this.

On 5 April, 1842, the Union Bank of Florida brought a suit against Thomas Brown, upon the following single bill:

"TALLAHASSEE, March 14, 1841"

"Dolls. $22,266 34/100."

"One month after date I promise to pay to the Union Bank of Florida at their banking house in the City of Tallahassee twenty-two thousand two hundred sixty-six 34/100 dollars for value received, for securing payment whereof I do hereby pledge my shares in the capital stock of said bank. Witness my hand and seal."


The defendant pleaded the general issue, four special pleas, and payment. To the pleas of the general issue and payment the plaintiff filed a general replication, a general demurrer to the second, third, and fourth, and a special demurrer to the fifth plea. These demurrers were all sustained, and the cause came on for trial upon the general replication to the first and sixth pleas. The plaintiff made fourteen prayers to the court, ten of which were granted and four refused. The defendant made two prayers, both of which were granted. The court then gave eight instructions to the jury. Under all these directions the jury found a verdict for the defendant. The plaintiff excepted to the refusal of the court to grant his four prayers, to the granting of the two asked by the defendant, and to five out of the eight instructions given by the court.

The case went up to the Court of Appeals of Florida, which, on 20 February, 1844, gave the following judgment:

"It seems to the court here that there is error is said judgment. Therefore it is considered by the court that the said judgment be reversed and annulled, and it is further ordered that the verdict

Page 45 U. S. 466

rendered in this cause be set aside and that this cause be remanded to the court below with instructions to said court to award a venire facias de novo, for a new trial of the issues to be had therein, and that the plaintiff in error recover against the defendant in error $_____ his costs by him about his said writ of error herein expended, which is ordered to be certified to the court below."

From this judgment a writ of error brought the case up to this Court.

MR. JUSTICE McLEAN delivered the opinion of the Court.

A motion is made to dismiss this writ of error because the judgment of the court below was not final, and there has been no service of the citation.

The motion is granted. The judgment below reversed the judgment of an inferior court and remanded the cause to that court with instructions to award a venire facias de novo; it was therefore not a final judgment on which only a writ of error can issue.


This cause came on to be heard on the transcript of the record from the Court of Appeals for the Territory of Florida, and it appearing on the motion of Mr. Thompson, of counsel for the defendant in error, that there has been no service of the citation in this cause, it is therefore now here ordered and adjudged by this Court that this cause be and the same is hereby dismissed with costs.

January 12.

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