CHARLES L. FRENCH AND JULIA M. FRENCH, APPELLANTS,
v.
BERNARD E. WELLMAN AND RUBY WELLMAN, APPELLEES
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An order granting a motion to set aside a default, as distinguished from an order setting aside a default judgment, is a non-final order not reviewable by appeal.
Appellees filed a motion to dismiss the appeal, arguing lack of jurisdiction. The appellees withdrew this motion after the appellants responded. The c…
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COWART, Judge.
This is an appeal from an interlocutory order granting a motion to set aside a default.
Appellees initially filed a motion to dismiss this appeal, arguing this court did not have jurisdiction, citing Yates v. Roller Skating Rinks, Inc., 379 So. 2d 1333 (Fla. 5th DCA 1980). Based on appellants’ response, appellees conceded and withdrew the motion to dismiss. Appellees erred, not in filing their motion to dismiss, but in withdrawing it. In Yates, we held that an order granting1 a motion to set aside a default, as distinguished from an order setting aside a judgment entered on a default (sometimes called a default judgment),2 was a non-final order not reviewable by appeal or common law certiorari. Since Yates is indistinguishable from this appeal, this appeal is
DISMISSED.
DAUKSCH, C. J., and ORFINGER, J., concur. . An order denying a motion to vacate a default has been held appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(c)(iv). See, e.g., Silva v. Pedro Realty, Inc., 411 So. 2d 872 (Fla.1982); Doctor's Hospital of Hollywood, Inc. v. Madison, 411 So. 2d 190 (Fla., 1982).
. An order granting a motion to set aside a default judgment pursuant to Florida Rule of Civil Procedure 1.540(b) is a reviewable non-final order under Florida Rule of Appellate Procedure 9.130(a)(4) or (5). See, e.g., Diner’s Club, Inc. v. Brachvogel, 370 So. 2d 443 (Fla. 3d DCA 1979), cert. dismissed 395 So. 2d 1156 (Fla.1980).
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Citator
Cited By
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Perry v. Sawyer, 454 So. 2d 790 (Fla. 5th DCA 1984)…cedure 1.540 setting aside a default judgment). Such an interlocutory order is not appealable. See Tieche v. Fla. Physicians Ins. Reciprocal, 431 So. 2d 287 (Fla. 5th DCA 1983); Palmer v. Palmer, 416 So. 2d 35 (Fla. 5th DCA 1982); French v. Wellman, 413 So. 2d 143 (Fla. 5th DCA 1982); Yates v. Roller Skating Rinks, Inc., 379 So. 2d 1333 (Fla. 5th DCA 1980). DISMISSED. COBB, C.J., and SHARP and COWART, JJ., concur.…
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Authorities Cited
- Doctor's Hosp. OF Hollywood, Inc. v. Hunter W. Madison, 411 So. 2d 190 (Fla. 1982)
- Yates v. Roller Skating Rinks Inc., 379 So. 2d 1333 (Fla. 5th DCA 1980)
- THE Florida BAR v. Ethier, 411 So. 2d 872 (Fla. 1982)
- Diners Club, Inc. v. Brachvogel, 395 So. 2d 1156 (Fla. 1980)
- The Diners Club, Inc. v. Brachvogel, 370 So. 2d 443 (Fla. 3d DCA 1979)