HOLLAND H. CHASTAIN, AS NEXT FRIEND AND NATURAL GUARDIAN OF HAROLD J. CHASTAIN, A MINOR, APPELLANT,
v.
FLOYD R. EMBRY AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, INC., AN ILLINOIS CORPORATION, AND BERDIE MAE ADKINS, APPELLEES
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Appellant sought to recover damages for breach of an alleged oral agreement for automobile liability insurance. The trial court granted defendant's motion for summary judgment, but this court dismissed the appeal, holding that the order granting summary judgment was interlocutory rather than final, and therefore not appealable absent jurisdiction or venue issues or applicable statute.
An order granting a summary judgment motion without employing traditional final judgment language or words creating finality is an interlocutory order, not a final judgment. Interlocutory orders are only appealable when they relate to venue or jurisdiction over the person, or when a statute or rule otherwise authorizes such appeal. The order here did not fall into any appealable category.
“The traditional words to form a final judgment at law wherein the decision is for a defendant have not been employed, nor have any words been used to create, a judgment of finality. Rather, the trial judge, through the language utilized in the order from which the appeal has ensued, granted the motion for summary judgment and did not go beyond this by entering a judgment consequent upon the granting of the motion.”
Establishes the distinction between an order granting a motion and a final judgment, showing the order was interlocutory.
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Join FLexlaw to unlock all legal intelligenceHarold J. Chastain, a minor represented by his next friend Holland H. Chastain, brought suit against Floyd R. Embry, State Farm Mutual Automobile Insu…
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Appellant sought to recover damages from the appellees, predicating his right to recovery upon an alleged oral agreement for issuance of an automobile liability insurance policy by the appellee insurance company to Harold J. Chastain, a minor. The action thus brought is one at law. A motion for summary judgment filed bjr the appellees was granted by the trial judge. The pertinent part of his order reads, “It is ordered and adjudged that defendant’s motion, filed February 25, 1959, for summary judgment, is granted.” The appeal is from this order.
Appellees have not raised the question that the decision appealed is not a final order or judgment. We raise it sua sponte.
The traditional words to form a final judgment at law wherein the decision is for a defendant have not been employed, nor have any words been used to create, a judgment of finality. Rather, the trial judge, through the language utilized in the order from which the appeal has ensued, granted the motion for summary judgment and did not go beyond this by entering a judgment consequent upon the granting of the motion. In other words, the order was the basis authorizing an entry of final judgment, but did not, of itself, constitute such a judgment. It is obvious, therefore, that the order under consideration is not final, but interlocutory.
*34An interlocutory order at common law is only appealable when it relates to, venue or jurisdiction over the person; and when such is not the case, an appeal must be from a final decision, order, or judgment, in the absence of a provision by rule or statute otherwise authorizing an appeal from an interlocutory order. See Greyhound Corporation v. Kelly, Fla.App.1958, 104 So.2d 471; Renard v. Kirkeby Hotels, Inc., Fla.App.1958, 99 So.2d 719; Brannon v. Johnston, Fla.1955, 83 So.2d 779; and Rules 3.2(b) and 4.2, Florida Appellate Rules, 31 F.S.A. The appeal does not concern venue or jurisdiction over the person. Since there is no statute which applies and since there is no other rule to take this appeal from under the interlocutory appeal provisions, it must be dismissed.
Appeal dismissed.
ALLEN, Chief Judge, and STEPHENSON, GUNTER, Associate Judge, concur.
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Pompano Paint Co. v. Pompano Beach Bank & Tr. Co., 208 So. 2d 152 (Fla. 4th DCA 1968)…full appeal under F.A.R. 3.2, 32 F.S.A. At the outset we run into a procedural problem. The order granting the motion for summary judgment is clearly not a final order or judgment appealable as such under F.A.R. 3. Chastain v. Embry, Fla.App.1960, 118 So. 2d 33; Pinellas County v. Woolley, Fla.App.1966, 189 So. 2d 217; Stone v. Buckley, Fla.App.1960, 119 So. 2d 298; Renard v. Kirkeby Hotels, Inc., Fla. App.1958, 99 So. 2d 719; Florida Living for the Retired, Inc. v. Retirement Hotel Associates, Inc., Fla.A…
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Shupack v. Allstate Ins. Co., 356 So. 2d 1298 (Fla. 3d DCA 1978)…roperly lie. See Harris v. Mosteller, 253 So. 2d 275 (Fla. 2d DCA 1971); Arnold v. Brady, 178 So. 2d 732 (Fla. 2d DCA 1965); Lyden v. DePiera, 147 So. 2d 573 (Fla. 3d DCA 1962); Stone v. Buckley, 119 So. 2d 298 (Fla. 2d DCA 1960); Chastain v. Embry, 118 So. 2d 33 (Fla. 2d DCA 1960); Elliott v. Lazar, 104 So. 2d 618 (Fla. 2d DCA 1958); and Renard v. Kirkeby Hotels, 99 So. 2d 719 (Fla. 3d DCA 1958). We recognize our authority to treat the appeal before the court as a petition for certiorari; however, we decli…
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Wash. Sec. Co. v. Tracy's Plumbing & Pumps, Inc., 166 So. 2d 680 (Fla. 2d DCA 1964)…eal order, which merely grants a motion for summary judgment, the order is not final and is not appealable. See e. g. Williams v. Maddren, Fla.App.1962, 147 So. 2d 572; Stone v. Buckley, Fla.App.1960, 119 So. 2d 298; Chastain v. Embry, Fla.App.1960, 118 So. 2d 33; Renard v. Kirkeby Hotels, Inc., Fla.App.1958, 99 So. 2d 719; Brannon v. Johnson, Fla.1955, 83 So. 2d 779. . Rule 3.2(b) F.A.R.; Rule 1.3 F.A.R. “Rendition” defined. . See Nowlin v. Pickren, Fla.App.1961, 131 So. 2d 894, 895 distinguishing the Wom…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Renard v. Kirkeby Hotels, Inc., 99 So. 2d 719 (Fla. 3d DCA 1958)
- Brannon v. Johnston, 83 So. 2d 779 (Fla. 1955)
- The Greyhound Corp. v. Wilton H. Kelly, 104 So. 2d 471 (Fla. 2d DCA 1958)
- Berdie Mae Adkins v. Embry, 118 So. 2d 34 (Fla. 2d DCA 1960)