As I see it, the appeal attempted to be issued as of March 1, 1939, was premature and unwarranted, because at that time, and apparently up to the present time, no final and appealable judgment had been entered in the circuit court. In their petition for rehearing, petitioners alleged they were not cognizant of the fact such judgment had not been entered as required by law at the time they attempted to take said appeal to this Court. Petitioners allege that they recenly, on July 26, 1939, had filed in the Circuit Court of Leon County, a motion, a certified copy of which, with its accompanying exhibits, is attached to the petition for rehearing, that no ruling upon said motion has as yet been made by the circuit court, but that the appellants desire and intend to proceed in the circuit court with all due speed to the end that its ruling and decision upon said motion may be obtained, so that they may bring to this Court an appeal from a final and appealable judgment to this Court. That the matters and things alleged in said motion can be established to the satisfaction of this Court in such form as the Court may require. In *Page 819 said motion made in the circuit court the appellants represent that on March 1, 1939, an order entitled "Final Judgment Affirming Award," was signed by Hon. J.B. Johnson, one of the judges of said court, the same purporting to affirm an award theretofore entered in this cause by the Florida Industrial Commission; that if said ruling represents the final decision of the circuit court, appellants desire to have the same reviewed by the Supreme Court of Florida, but that in the present state of the record, appellants are precluded from taking a valid and effective appeal to the Supreme Court, because said ruling dated March 1, 1939, has never been entered in the records of the circuit court as required by law, that the same was recorded by the circuit court clerk in a book entitled "Record of Judgments," and in no other book, that it was never entered in the minute book or the chancery order book of said court, that the book wherein the said paper was recorded is not such a book as is authorized by statute, but is a book in which it has been customary for said clerk to record merely defaults, and default and consent judgments. That because of these facts the appellant cannot effectively take an appeal.
Section 4857 C. G. L. provides that the clerk shall keep minute books in which he shall keep fair and regular minutes of all the proceedings of the circuit court, which shall be signed by the judge before the adjournment of each term; also a progress docket, which is not material here, and a default docket in which later shall be entered all defaults and final judgments by default taken in his office; also a judgment and execution docket, in which he shall index all judgments rendered in term time or vacation and all executions issued thereon, stating the amount of the judgment and cost, the date of rendition, etc. This statute also requires the clerk to keep a chancery order book in which shall be *Page 820 entered all orders and decrees taken in chancery, including those required to be signed by the judge exclusively.
In the case of Pittsburgh Steel Company v. Streety, 60 Fla. 183, 53 So. 505, this Court held that a judgment in an action at law is rendered when it is entered or recorded in theminutes of the court during term time, or when in vacation it is put in form for such entry or record and is signed by the judge; and that when no final judgment was entered in the minutes of the court at the trial, but a final judgment nuncpro tunc is put in form for record and signed by the judge at asubsequent day, a writ of error issued prior to the date of the judgment thus signed by the judge is ineffectual and cannot be used to bring the judgment to the appellate court for review; that in order to bring such judgment to the Supreme Court for review a writ of error should be addressed thereto "within six months from the date of said judgment;" that upon the issuance of such writ of error to the judgment leave may be asked to use the transcript already on file in the Supreme Court.
In the case of Ellis v. State, 100 Fla. 27, 129 So. 106, this Court cited the case of Pittsburgh Steel Company v. Streety,supra., with approval, to the effect that a judgment in an action at law, is rendered when it is entered or recorded in the minutes of the court, and held that while in a certain sense a judgment is rendered when it is announced by a judge, yet until such judgment is entered of record there is no competent evidence of such rendition, and added that where no judgment is in fact pronounced or rendered, at the close of a hearing, or trial, the case remains unfinished on the docket until the judgment is later rendered and entered, unless meanwhile for some reason the court has lost jurisdiction of the case. That "such a judgment, when entered, is not the entrynunc pro tunc of *Page 821 a judgment previously rendered but not entered of record; it is the entry of a judgment that had not theretofore been rendered — a new and original judgment."
In the case of State ex rel. Landis v. City of Auburndale,121 Fla. 336, 163 So. 583, it appeared that the judgment was arrived at by the circuit judge in the City of Lakeland and not in the County site, the of Bartow, in the same county. In that case, this Court, speaking through Mr. Justice BUFORD, said:
"The record, however, shows that the findings and judgment of the circuit judge were filed and recorded in the minutes of the circuit court in the county court house at Bartow on the 11th day of July, 1934. The findings of the circuit judge as set out in the judgment and the judgment did not become effective, although it was dated at Lakeland, Florida, the 9th day of July, 1934, until the same was filed for record in the office of the clerk of the circuit court on the 11th day of July, 1934, and recorded in the minutes of the court. Until it was so filed, it remained in the breast of the court and amounted to no more than if he had arrived at the mental conclusion as to what his judgment would be while in Chambers at Lakeland and then went over to Bartow the County site, and had the same entered on the minutes of the court." (Italics supplied.)
Also in the case of Fawcett v. Weaver, 121 Fla. 245,163 So. 561, this Court held that since an action at law once instituted is pending until entry of final judgment, a trial court, failing to enter judgment at proper term, is not precluded thereafter to close the case by the entry of a proper judgment on the record at the succeeding term of the court. In the opinion in that case, which was also written by Mr. Justice BUFORD, the case of Florida Development Co. v. Polk County,76 Fla. 629, 80 So, 560, is quoted from, and *Page 822 in such opinion it was also said: "So it appears clear that the defendant was entitled to have a judgment entered when the motion for a new trial was denied, and the fact that the court failed to have the judgment entered upon the court minutes does not deprive the defendant of his right to such entry later."
If the judgment of the circuit court in this case had been equitable in character, it would have had to be entered in the chancery order book, and until so entered, it would not have become final and appealable. See Section 4948 C. G. L., andIn re: Petition of Kansas Masonic Home, 128 Fla. 708,175 So. 526; and Fiehe v. Householder, 98 Fla. 627, 638, 125 So. 2.
I think therefore that the petition for rehearing, raising these questions, should either be granted, or that a supplementary opinion should be filed recognizing that no appealable judgment of the circuit court was in existence when the former abortive attempt to take an appeal was made; holding that such effort to appeal was premature; and providing that this Court's ruling and opinion herein on July 21, 1939, dismissing said appeal should be modified so as to show that any decision now rendered is without prejudice to the right of petitioners to take a new appeal from the circuit court when the decision of that court shall have been made final and appealable by proper entry of its judgment.
In our former opinion of July 21, 1939, the Court among other things said that: "The controlling statute providing for appeals in this class of cases mandatorily requires such an appeal to be taken 'within thirty days after the entry of the judgment of the circuit court' and that 'the appeal shall be returnable from the circuit court to the Supreme Court to a day more than thirty days and not more than 90 days from the date of the judgment appealed from.' " Thus we *Page 823 have recognized that the statute mandatorily requires that an appeal must be taken within thirty days after the entry of the judgment appealed from, and of course this means a legal entry, such as is necessary to make the judgment final and appealable.