MARY KLEMENKO, APPELLANT,
v.
ALEX KLEMENKO, APPELLEE
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Mary Klemenko appealed an order denying her petition for rehearing in a chancery matter, but the Florida Supreme Court dismissed the appeal for lack of jurisdiction because she failed to appeal the underlying final decree itself, only the order denying her motion for rehearing.
An appeal of an order denying a petition for rehearing is not a permissible substitute for an appeal of the final decree itself. The Court lacks jurisdiction to review an order denying a rehearing petition when no appeal has been taken from the final decree that is the subject of the rehearing petition.
“A review of the procedural steps employed to bring the case before us will show that no appeal has been taken from the final decree.”
Establishes the fundamental jurisdictional defect: the appellant appealed only the order denying the rehearing motion, not the underlying final decree.
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Join FLexlaw to unlock all legal intelligenceThe Chancellor entered a final decree on March 25, 1957 in favor of Alex Klemenko. On April 1, 1957, Mary Klemenko filed a petition for rehearing, fol…
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THORNAL, Justice.
Appellant Mary Klemenko, who was plaintiff below, by appeal seeks reversal of an order of the Chancellor denying her petition for rehearing of a final decree entered in favor of the appellee Alex Klemenko, who was defendant below.
In order to dispose of the case we must decide whether a petition for rehearing in chancery is subject to review by appeal.
It is unnecessary to delineate the facts on the merits. On March 25, 1957, the Chancellor entered' a final decree in favor of the appellee Alex Klemenko. On April 1, 1957, appellant filed her petition for rehearing setting out certain alleged errors in the entry of the final decree. On April 17, 1957, appellant filed another document entitled “Motion to Vacate Final Decree and for Verdict for Plaintiff.” For purposes of this decision we treat the two documents as being tantamount to a composite petition for rehearing. Actually the April 17 document was filed too late under the rules. 31 F.S.A., Florida Rules of Civil Procedure, rule 3.16. On April 25, 1957, the Chancellor entered an order denying the motion to vacate and the petition for rehearing. On May 6, 1957, appellant filed her notice of appeal seeking the review of “the order, judgment or decree of the Circuit Court of Dade County bearing date of the 25th day of April, 1957, which order denied the plaintiff’s motion to vacate final decree and for verdict for the plaintiff.”
We find it unnecessary to consider the various contentions of the parties on the merits of the controversy. This appeal will have to be dismissed for jurisdictional reasons. A review of the procedural steps employed to bring the case before us will show that no appeal has been taken from the final decree. This decree therefore stands effective and binding between the parties.
Notice of appeal is directed only to the order of the Chancellor denying the two motions which sought a rehearing of the cause. If we were to undertake to pass on the correctness of the ruling on the petitions for rehearing it would be necessary to examine the final decree and the record which produced-it. If we were to do this we would be undertaking to review a final decree which has not been assaulted by the appellant herself. The product of this approach would be to give the appellant the benefit of a review of a final decree from which she has taken no appeal.
We are not here confronted with the question of the effect of the filing of the petition for rehearing upon an extension of time for assaulting the final decree as was the situation in Ganzer v. Ganzer, Fla.1956, 84 So. 2d 591. The situation now here is simply that the appellant has filed no notice of appeal directed to the final decree. Instead, she has filed the notice of appeal directed to the order denying her petition for rehearing. Each of the assignments of error filed in this cause is directed to alleged errors in the final decree from which no appeal has been taken.
We therefore conclude sua sponte that there is no jurisdictional foundation for the consideration of the matter by this Court and the cause will have to be dismissed. Gasque v. Ball, 71 Fla. 257, 71 So. 329; Thomkin Corporation v. City of Miami Beach, 135 Fla. 360, 185 So. 422; Proctor v. Kennedy, Fla.1953, 64 So. 2d 567.
It is ordered that the appeal be and the same is hereby dismissed.
TERRELL, C. J., and ROBERTS, DREW and O’CONNELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Scheuermann v. Shamas, 97 So. 2d 314 (Fla. 3d DCA 1957)…nce the fee allowance was made in the final decree and not by the subsequent order, and no appeal from the final decree was perfected, the review directed to the later order can not reach back to the final decree. See Klemenko v. Klemenko, Fla.1957, 97 So. 2d 11. Accordingly, this appeal must be treated as a petition for certiorari, which hereby is denied. So ordered. HORTON and PEARSON, TT„ concur.…
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McNARY v. Hudson, 110 So. 2d 73 (Fla. 2d DCA 1959)…ck. Such procedure does not deposit the cause in this forum, there being no jurisdictional basis established for its consideration. The appeal will have to be dismissed. See Finley v. Finley, Fla.1958, 103 So. 2d 191; Klemenko v. Klemenko, Fla.1957, 97 So. 2d 11; and section 59.02 (2), F.S.A. Appeal dismissed. SHANNON, J., and DREW, E. HARRIS, Associate Judge, concur.…
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Oxford v. Polk Fed. Sav. & Loan Ass'n OF Lakeland, 147 So. 2d 603 (Fla. 2d DCA 1962)…an appeal from an order denying a petition for rehearing does not bring up for review the final decree. Fullerton v. Clark, 1940, 142 Fla. 200, 194 So. 481; Hollywood, Inc. v. Clark, 1943, 153 Fla. 501, 15 So. 2d 175; Klemenko v. Klemenko, Fla.1957, 97 So. 2d 11; McNary v. Hudson, Fla.App.1959, 110 So. 2d 73; Moore v. Carlisle, Fla.App.1959, 111 So. 2d 457. Such an order is, in effect, nonappealable where, as here, it presents no issue for review other than those finally determined by the decree from which…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gasque v. Ball, 71 Fla. 257 (Fla. 1916)
- Duke v. State, 134 Fla. 456 (Fla. 1938)
- Ganzer v. Ganzer, 84 So. 2d 591 (Fla. 1956)
- Proctor v. Kennedy et ux., 64 So. 2d 567 (Fla. 1953)
- The Thomkin Corp. v. City of Miami Beach, 135 Fla. 360 (Fla. 1938)