MACK JONES, ALVIN GORTON, HERMAN HASTINGS, DAWSON MCDANIEL, WILSON PIGOTT, AS AND CONSTITUTING THE BOARD OF COUNTY COMMISSIONERS OF LEE COUNTY, FLORIDA, AND ARCHIE ODOM AND FRANK PAVESE, PETITIONERS,
v.
ALICE JOHNSON ET AL., RESPONDENTS
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This case concerns whether a petition for writ of certiorari is the correct procedure to seek review of an interlocutory order in equity under Florida Appellate Rules. The court held that interlocutory appeals must now be filed as appeals, not petitions for certiorari.
No, a petition for writ of certiorari is not the correct procedure. Interlocutory appeals from orders in equity must now be prosecuted by appeal, not by petition for certiorari, under the new rules.
“Except where petitions for certi-orari are permitted by law or by these rules, all appellate review shall be by appeal.”
Establishes the general rule for appellate review under the new Florida Appellate Rules.
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Join FLexlaw to unlock all legal intelligencePetitioners sought review of a lower court's order denying their motion to dismiss a complaint. They filed a petition for writ of certiorari. The resp…
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PER CURIAM.
The petition herein, for writ of certiorari, requests this court to review an order of the Judge of the Twelfth Circuit, which denied a motion of the petitioners, defendants below, to dismiss the second amended' complaint of the respondents, plaintiffs below.
The respondents, in their brief, submitted the following question:
“Is a Petition for Writ of Certiorari the Correct Procedure for Obtaining Relief from an Adverse Interlocutory Order in Equity by a Lower Court under the Florida Appellate Rules which Became Effective July 1, 1957?”
Florida Appellate Rules, which became effective July 1, 1957, Rule 3.1, provides :
“Except where petitions for certiorari are permitted by law or by these rules, all appellate review shall be by appeal.”
Rule 4.2 “Interlocutory Appeals”, paragraph (a), provides:
“Appeals from interlocutory orders or decrees in equity, orders or decrees entered after final decree, and orders at common law relating to venue or jurisdiction over the person, may be prosecuted in accordance with this rule; provided that nothing contained in this rule shall preclude the review of such orders and decrees on appeal from the final decree in the cause.”
It will be seen from the two above rules, that interlocutory appeals must now be prosecuted by appeal and not by a petition, for certiorari.
The Supreme Court of Florida, in the case of Bartow Growers Processing Corporation v. Florida Growers Processing Cooperative, Fla.1954, 71 So. 2d 165 held:.
“Despite statute providing that an appeal improvidently taken may be treated as a-petition for certiorari, petition for certiorari which was filed to review an order which was reviewable only by appeal could not be treated as an appeal.”
Since the order here involved should have been brought to us for review by an interlocutory appeal instead of by petition for writ of certiorari, we must deny such petition.
Petition denied.
KANNER, C. J., ALLEN, J., and STEPHENSON, Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By (12 total)
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Fort v. Anne Burton Fort, 104 So. 2d 69 (Fla. 1st DCA 1958)…K, J., concur. . See: Codomo v. Shaw, Fla.1958, 99 So. 2d 849; Pullman Co. v. Fleishel, Fla.App.1958, 101 So. 2d 188. . Bartow Growers Processing Corp. v. Florida Growers Processing Co-op., Fla. 1954, 71 So. 2d 165; Jones v. Johnson, Fla.App.1957, 98 So. 2d 506.…
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Shute v. Keystone State Bank & Mrs. Edward J. Hutson, 159 So. 2d 106 (Fla. 1st DCA 1963)…n for certiorari ta review an order reviewable only by-appeal can not be treated as an appeal-See Bartow Growers Processing Corporation v. Florida Growers Processing Cooperative, Fla.1954, 71 So. 2d 165; Jones et al. v. Johnson et al., Fla.App.1957, 98 So. 2d 506; F.S. § 59.45, F.SA.” Since the statute 5 authorizing review of interlocutory orders or decrees in equity by proceedings in the nature of certiorari was superseded by the adoption of Florida Appellate Rule 4.2 providing for interlocutory appeals, i…
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Mapoles v. Wilson, 122 So. 2d 249 (Fla. 1st DCA 1960)…interlocutory appeal and is jurisdictional. For related cases see Pullman Co. v. Fleishel, Fla.App.1958, 101 So. 2d 188; Shaw v. Hill, Fla.App.1959, 114 So. 2d 721; Strazzulla v. Hinson, Fla.App.1959, 113 So. 2d 419; Jones v. Johnson, Fla.App.1957, 98 So. 2d 506. Although the question of this court’s jurisdiction was not raised by the parties, it is a matter of primary concern to which we must address ourselves sua sponte when any doubt exists. Finding that jurisdiction of this court is lacking, the petiti…
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- Bartow Growers Processing Corp. v. Fla. Growers Processing Coop., 71 So. 2d 165 (Fla. 1954)