AUGUST TABORSKY ET AL., APPELLANTS,
v.
J. STEWART MATHEWS, TRUSTEE, ET AL., APPELLEES
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The appellate court dismissed an appeal because the notice of appeal was filed for an order denying a motion to modify a final decree, rather than the final decree itself. The court reasoned that reviewing the order denying modification would necessitate reviewing the final decree, which was not properly appealed.
No, an appellate court cannot review a final decree when the notice of appeal only designates an order denying a motion to modify that decree for review.
“To determine the correctness of the ruling on the Motion to Modify the Decree, we would be required to consider the final decree and the record upon which it was predicated.”
Explains why reviewing the order denying modification requires reviewing the final decree.
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Join FLexlaw to unlock all legal intelligenceAppellants sought to appeal an order denying their motion to modify a final decree that rescinded a real property sale. The motion to modify sought in…
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This Court cannot consider on its merits the cause here presented by the appellants. The final decree was entered in this cause on June 21, 1961. The decree rescinded the sale of real property and directed the return of the purchase price. Then the defendants filed what it designated a “Motion to Modify Decree.” This motion was, in effect, a petition for rehearing endeavoring to cause the Court to order that the purchase money be returned, together with interest, and that the costs be taxed in a manner different than that provided in the decree. The Court entered an order denying this motion on July 27, 1961. The defendants then filed their notice of interlocutory appeal “to review the order, judgment or decree of the Circuit Court for Martin County, hearing date the 27th day of July, 1961, entered in the above styled cause on the 27th day of July, 1961, and recorded in Chancery Order Book 16 at Page 310.” To determine the correctness of the ruling on the Motion to Modify the Decree, we would be required to consider the final decree and the record upon which it was predicated. To do this would then call for a review of a final decree on appeal that has not been made the subject of a notice of appeal. This Court has previously held that this cannot be done. See McNary v. Hudson, Fla.App.19S9, 110 So. 2d 73.
The appeal is dismissed ex mero motu.
ALLEN, Acting C. J., and KANNER and SMITH, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- McNARY v. Hudson, 110 So. 2d 73 (Fla. 2d DCA 1959)
- August P. Taborsky v. Mathews, 121 So. 2d 61 (Fla. 2d DCA 1960)