ROBERT R. MCNARY ET AL., APPELLANTS,
v.
MARY PORTER HUDSON, AS ADM., ET AL., APPELLEES
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The appellants attempted to appeal from an order denying their petition for rehearing rather than from the underlying final decree of dismissal. The court dismissed the appeal on jurisdictional grounds because reviewing the rehearing order without the final decree being subject to attack would lack a proper jurisdictional basis.
The court lacks jurisdiction to review the order denying the petition for rehearing because to do so would require consideration of the final decree of dismissal—which has not been made the subject of direct attack on appeal—and proper jurisdictional basis is not established for such review.
“What the appellants are here presenting is an appeal from the order denying the petition for rehearing and not an appeal from the final decree of dismissal.”
Establishes the core jurisdictional problem: appellants appealed the wrong order
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Join FLexlaw to unlock all legal intelligenceOn June 26, 1958, the chancellor entered an order of dismissal. The appellants filed a petition for rehearing on July 2, 1958. On August 22, 1958, the…
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This court cannot consider on its merits the cause here presented by the appellants. This is due to a jurisdictional aspect which may be demonstrated through the sequence of steps here set forth, revealing that the order from which the appeal emanates is not reviewable.
On June 26, 1958, the chancellor entered an order of dismissal, decreeing “ * * * that this cause be and it is hereby dismissed at the cost of the Plaintiffs.”
On July 2, 1958, petition for rehearing was filed.
On August 22, 1958, the court entered its order, as follows:
“Ordered, Adjudged and ' Decreed That said petition for rehearing is temporarily granted and said Order of June 26, 1958, be and it is hereby stayed, until further hearing * * * ”
Then, on August 28, 1958, the court entered its order stating “ * * * that the said petition for rehearing be and the same is hereby denied.”
On October 8, 1958, notice of appeal to this court was filed, stating:
“ * * * to review the order or decree of the Circuit Court of Polk County, Florida, In Chancery bearing date the 28th day of August, 1958, entered in the above st)ded cause and recorded in Official Record Book 177 page 355, on the 30th day of August, 1958. Said order is the Final Order that followed the Order of Court of August 21, 1958, that stayed the proceedings until said Final Order.”
What the appellants are here presenting is an appeal from the order denying the petition for rehearing and not an appeal from the final decree of dismissal. To determine the correctness of the ruling on the petition for rehearing would require a consideration of the final decree and the record upon which it is predicated. To do this would then call for a review of a decree on appeal that has not been made the subject of attack. 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.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Kaemmerlen v. Shannon, 119 So. 2d 315 (Fla. 2d DCA 1960)…PER CURIAM. This appeal is not from the final decree, but from the order denying the petition for rehearing. The appeal will have to be dismissed ex mero motu. Finley v. Finley, Fla.1958, 103 So. 2d 191; McNary v. Hudson, Fla.App., 1959, 110 So. 2d 73. Appeal dismissed. ALLEN, C. J., and KANNER and SHANNON, JJ., concur.…
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Oxford v. Polk Fed. Sav. & Loan Ass'n OF Lakeland, 147 So. 2d 603 (Fla. 2d DCA 1962)…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 no appeal was taken. Finley v. Finley, Fla.1958…
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Jones v. Wilson, 146 So. 2d 784 (Fla. 2d DCA 1962)…ehearing, this court would be required' to consider the final decree and the record' on which it was predicated. We have previously held that this cannot be done. See Taborsky v. Mathews, Fla.App.1962, 137 So. 2d 880; McNary v. Hudson, Fla.App.1959, 110 So. 2d 73. The decree sought to be appealed is neither a final decree nor an appealable interlocutory order. This appeal accordingly is dismissed ex mero motu. KANNER, Acting C. J., and WHITE and SMITH, JJ., concur.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Williams v. Levine, 103 So. 2d 191 (Fla. 1958)
- Finley v. Coralee Russell Finley, 103 So. 2d 191 (Fla. 1958)
- Klemenko v. Klemenko, 97 So. 2d 11 (Fla. 1957)