IRENE EMMA BAKER, APPELLANT,
v.
SHERMAN L. COLLEY AND MILDRED L. COLLEY, APPELLEES
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Baker appealed from an order granting defendants' motion to dismiss and motion to strike in a negligence action arising from injuries caused by defendants' cat. The court dismissed the appeal for lack of jurisdiction because the order was interlocutory, not a final judgment.
The order is interlocutory in character and not a final judgment; therefore, the appeal must be dismissed for lack of jurisdiction, as no appeal lies until appropriate disposition has been made of all issues in the cause.
“Appeals from final decisions, orders, judgments or decrees shall be commenced within 60 days from the rendition of the final decision, order, judgment or decree appealed from, unless some other period of time for taking an appeal is specifically provided by statute or these rules.”
Establishes the foundational requirement that only final orders are appealable under Florida Appellate Rule 3.2(b).
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Join FLexlaw to unlock all legal intelligenceIrene Emma Baker sued Sherman L. Colley and Mildred L. Colley for injuries she sustained while an invitee on their premises. The injuries resulted whe…
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This is an appeal from an order granting a motion to dismiss and a motion to strike the complaint in a negligence action. Irene Emma Baker sued Sherman L. Colley and Mildred L. Colley, husband and wife, for injuries received while an invitee on defendants’ premises. Such injuries resulted when a cat owned and kept by defendants became excited in the presence of plaintiff’s small dog and jumped against plaintiff, knocking her down. Plaintiff appeals.
We are precluded in this case from deciding the relative merits of pet dogs and pet cats by the form of the order entered by the trial court, which was as follows:
“Ordered, and Adjudged that said Motion to Dismiss and said Motion to Strike be, and the same are hereby granted.”
31 F.S.A.Florida Appellate Rule 3.2(b) provides:
“Appeals from final decisions, orders, judgments or decrees shall be commenced within 60 days from the rendition of the final decision, order, judgment or decree appealed from, unless some other period of time for taking an appeal is specifically provided by statute or these rules.”
The above order was not a final judgment, therefore the appellant could not take an appeal therefrom. Since this is a question of jurisdiction, the court must, ex mero motu, dismiss the appeal in this case.
In the case of Catchings v. Florida-McCracken Concrete Pipe Co., 1931, 101 Fla. 792, 135 So. 561, 562, the Supreme Court held that an order that “judgment is hereby rendered herein for the defendant”, is *474not the equivalent of an order that the plaintiff “take nothing by his suit, and that the defendant go hence without day”, and that the order was not such a final judgment as would warrant review by writ of error.
In the case of Renard v. Kirkeby Hotels, Inc., Fla.App.1958, 99 So.2d 719, the District Court of Appeals, Third District, held that an order granting a motion for summary judgment in a common law action was not a final judgment and subject to review on appeal.
In the case of Brannon v. Johnston, Fla. 1955, 83 So.2d 779, the circuit court, in a negligence action on motion for summary judgment, entered an order which found the defendant guilty of negligence and provided that the only matter in issue at trial would be plaintiff’s damages. From that order the defendant appealed; and the Supreme Court held that the order was interlocutory and that no appeal would lie until appropriate disposition had been made of all issues in the cause, and dismissed the appeal.
Therefore, since in the case before us the order appealed from is interlocutory in character in a common law case, the appeal must be dismissed.
SHANNON, J. and MORROW, R. O., A. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (17 total)
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Russell v. Russell, 507 So. 2d 661 (Fla. 4th DCA 1987)…non-appealable until a further order dismissing the complaint has been rendered. See, for example Goldfarb v. Bronston, 154 Fla. 180, 184, 17 So. 2d 300, 301 (1944) and Gates v. Hayner, 22 Fla. 325 (1886), cited therein. See, also, Baker v. Colley, 104 So. 2d 473 (Fla. 2d DCA 1958), citing Catchings v. Florida-McCracken Concrete Pipe Co., 101 Fla. 792, 135 So. 561 (1931). To those of us who respect precedent but do not wish to be surrogates of the status quo, it seems appropriate to question why a rule cont…
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Wash. Sec. Co. v. Tracy's Plumbing & Pumps, Inc., 166 So. 2d 680 (Fla. 2d DCA 1964)…mplaint without dismissing the cause lack the finality requisite to full appeal.2 Altiere v. The Atlantic National Bank of West Palm Beach, Fla.App.1963, 155 So. 2d 386; Weinmann v. Ligon, Fla.App.1958, 105 So. 2d 204; Baker v. Colley, Fla.App.1958, 104 So. 2d 473; Herpel, Inc. v. Pfundston, Fla.App.1958, 104 So. 2d 620. The Third District Court of Appeal has held likewise in Shotkin v. Deehl, Fla.App.1963, 148 So. 2d 538, (Law); cf. Mitchell v. Italian-American Club, Fla.App.1960, 122 So. 2d 228 (Chancery).…
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City OF Tallahassee v. BIG Bend PBA and Tom Maureau, 703 So. 2d 1066 (Fla. 1st DCA 1997)…inal, appealable order; use of additional language “lends the necessary unequivocal declaration of finality that will support an appeal”), citing Catchings v. Florida-McCracken Concrete Pipe Co., 101 Fla. 792, 135 So. 561 (1931) and Baker v. Colley, 104 So. 2d 473 (Fla. 2d DCA 1958). Because the order appealed from in this case lacks such words of finality, it is not a final, appeal-able order. “Lest this be taken as paying homage to form over substance, we note that the question is one of jurisdiction.” Bon…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Emory Catchings v. Florida-McCracken Concrete Pipe Co., 101 Fla. 792 (Fla. 1931)
- Renard v. Kirkeby Hotels, Inc., 99 So. 2d 719 (Fla. 3d DCA 1958)
- Brannon v. Johnston, 83 So. 2d 779 (Fla. 1955)