ROSE SEIFERTH, APPELLANT,
v.
RUSSELL J. SEIFERTH, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The Florida District Court of Appeal dismissed an appeal filed by defendant Rose Seiferth because the notice of appeal was filed before the lower court's ruling on the appellee's petition for rehearing was formally recorded, violating the requirement that a final decree must be deemed rendered before appellate jurisdiction attaches.
The appellate court lacked jurisdiction because the final decree was not deemed rendered until the petition for rehearing was disposed of and the order was actually filed and recorded. The appeal was dismissed, and the appellant could perfect a new appeal after the petition for rehearing had been properly disposed of.
“Where there has been a timely and proper motion or petition for a new trial, rehearing or reconsideration by the lower court, the decision, judgment, order or decree shall not be deemed rendered until such motion or petition is disposed of.”
Establishes the controlling legal rule under Florida Appellate Rule 1.3 that determines when a final decree is deemed rendered for purposes of appellate jurisdiction.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceA final decree was rendered on March 23, 1960. The plaintiff-appellee filed a timely petition for rehearing, which was denied by order dated May 6, 19…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Final Decree cases and more on FLexlaw
The appellee moves to dismiss this appeal upon the ground that at the time of the filing of the notice of appeal, by the appellant-defendant, the final decree appealed had not been rendered within the meaning of Rule 1.3, F.A.R., 31 F.S.A. The appeal is dismissed.
The final decree was recorded March 23, 1960. The plaintiff-appellee filed a timely and proper petition for rehearing. This petition was denied by an order dated May 6, 1960. Defendant-appellant filed her notice of appeal that same day. The order denying plaintiff-appellee’s petition for rehearing was filed and recorded May 10, 1960.
The rule above cited provides:
“ * * * Where there has been a timely and proper motion or petition for a new trial, rehearing or reconsideration by the lower court, the decision, judgment, order or decree shall not be deemed rendered until such motion or petition is disposed of.”
It has been held previously that where an appellant files a notice of appeal prior to the disposition of his petition for rehearing, he shall be deemed to have abandoned the petition, and the appeal may proceed. Allen v. Town of Largo, Fla.1949, 39 So.2d 549; Frank v. Pioneer Metals, Inc., Fla.App.1959, 114 So.2d 329.
In the instant appeal, the appellant cannot be said to have waived the ap-pellee’s motion, because to do so would allow an appellant to deprive an appellee of a ruling, and the incidental right to cross-assign the ruling upon the petition as well as the trial court’s right to reconsider the decision in the light of the petition. This is true because when jurisdiction of the appellate court attaches upon the filing of the notice of appeal, it is exclusive as to the subject covered by the appeal. Willey v. W. J. Hoggson Corporation, 89 Fla. 446, 105 So. 126.
The remaining question is whether appellee’s petition for rehearing was, under the language of the rule, “disposed of.” We think not because an order becomes a part of the record only when delivered to the clerk. Young v. Victory, 112 Fla. 66, 150 So. 624. Its reduction to writing and filing thereof is for the purpose of providing a predicate for appeal. Wheeler Fertilizer Co. v. Rogers, Fla.1950, 49 So.2d 83.
This appeal is therefore dismissed and a new appeal may be perfected after the petition for rehearing has been disposed of upon the return of this cause to the Circuit Court.
It is so ordered.
HORTON, C. J., and CARROLL, CHAS., J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Forrest L. Bannister and Pattie R. Bannister v. Deane Loes Hart, Jr., 144 So. 2d 853 (Fla. 2d DCA 1962)…January 2, 1962, denying the motion for a new trial was a nullity and the second notice of appeal filed on January 8, 1962, was not taken within sixty days of the final judgment entered on September 12, 1961. In Seiferth v. Seiferth, Fla.App.1960, 121 So. 2d 689, the Third District Court of Appeal held that the reduction to writing and filing of the order denying the appellee’s petition for rehearing in the lower court was an essential predicate to the appellant’s notice of appeal. The court stated at page…1 / 2
-
In re Forfeiture OF $104 v. Metro Dade Police Dep't, 578 So. 2d 727 (Fla. 3d DCA 1991)…It should also be noted that the Williams dictum now in question also applies to the pendency of the other side’s post-trial motion which, as has long been held, the appellant cannot deprive his opponent the ability to pursue. Seiferth v. Seiferth, 121 So. 2d 689, 690 (Fla. 3d DCA 1960); see Maynard v. Maynard, 515 So. 2d 308 (Fla. 3d DCA 1987). . The fact that the author is a late convert to this view, see Codomo, 372 So. 2d at 953 [*729] (Schwartz, J., dissenting), does not detract from the sincerity with…
-
Scott-Whitaker Co., Inc. v. Joyce Props., Inc., 155 So. 2d 661 (Fla. 3d DCA 1963)…3. Two days later, on April 12, appellants filed a petition for rehearing. Three days thereafter, on April IS, appellants filed this appeal.1 In support of their motion to dismiss the appeal the appellees rely on Seiferth v. Seiferth, Fla.App.1960, 121 So. 2d 689, in which it was held that an appeal by one party was not proper during pendency of a timely petition for rehearing which had been filed by an adverse party. That decision is of no force here, where both the petition for rehearing and the subsequent…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Willey v. W. J. Hoggson Corp., 89 Fla. 446 (Fla. 1925)
- Shuron Hester v. State, 312 So. 3d 173 (Fla. 1st DCA 2021)
- Allen v. Town of Largo, 39 So.2d 549 (Fla. 1949)
- Anne Frank v. Pioneer Metals, Inc., 114 So. 2d 329 (Fla. 3d DCA 1959)
- Wheeler Fertilizer Co. v. Rogers, 49 So. 2d 83 (Fla. 1950)
- Young v. Victory, 112 Fla. 66 (Fla. 1933)