SCOTT-WHITAKER COMPANY, INC., SONNY G. MARDEN, ET AL., APPELLANTS,
v.
JOYCE PROPERTIES, INC., AND LILLIAN FISCHER, APPELLEES
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 court held that filing a notice of appeal after a petition for rehearing constitutes an abandonment of the petition.
Appellants filed a petition for rehearing after an adverse summary final decree, and subsequently filed a notice of appeal. The appellee moved to dism…
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 Petition For Rehearing cases and more on FLexlaw
This matter is before us on a motion by the appellee to dismiss the appeal. Appel-lees contend the appeal is subject to dismissal because it was filed while a timely petition for rehearing was pending.
A summary final decree adverse to the appellants was rendered April 10, 1963. 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 notice of appeal were filed by the same parties or “side.” In State ex rel. Owens v. Pearson, Fla.1963, 156 So.2d 4, recently decided by the Supreme Court, it was determined that an appeal filed within the 10-day period allowed for rehearing, but before any petition for rehearing has been filed, will not waive *662the right to petition for rehearing, and that a timely petition for rehearing by a party will nullify his previously filed appeal. That case is not controlling or applicable here because in the instant case the petition for rehearing was filed first, and the appeal filed thereafter. Therefore, the rule to be applied in this case is that announced in a number of decisions to the effect that the filing of a notice of appeal by a party constitutes an abandonment of his previously filed undisposed of petition for rehearing. See Allen v. Town of Largo, Fla.1949, 39 So.2d 549; Frank v. Pioneer Metals, Inc., Fla.App.1959, 114 So.2d 329; Seiferth v. Seiferth, supra; Chambers v. Chambers, Fla.App. 1962, 143 So.2d 656.
For the reasons stated, the motion to dismiss the appeal should be and hereby is denied.
It is so ordered.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Kasper Instruments, Inc. v. Maurice, 394 So. 2d 1125 (Fla. 4th DCA 1981)…e jurors on voir dire”, though initially raised below in a motion for rehearing, was abandoned in the trial court upon the appellant’s filing a notice of appeal prior to consideration of the motion. Scott-Whittaker Company v. Joyce Properties, Inc., 155 So. 2d 661 (Fla. 3rd DCA 1963). Thus, in determining the propriety of the trial court’s denial of the motion to interview the jury, we consider only the first three factors cited. Although Fla.R.Civ.P. 1.431(g) provides that jury interview shall be allowed und…
-
The Fin. Mktg. Grp., Inc. v. State, 352 So. 2d 524 (Fla. 3d DCA 1977)…commended by the hearings examiner. . The filing of the petition constituted an abandonment of the undisposed of petition for rehearing. State v. Turnpike Authority, 134 So. 2d 12 (Fla. 1961); Scott-Whitaker Company, Inc. v. Joyce Properties, Inc., 155 So. 2d 661 (Fla. 3rd D.C.A. 1963).…
-
In re ONE (1) 1979 Chevrolet Blazer Bearing Fla. TAG NO. WFF-202 v. Metro-Dade Police Dep't, 436 So. 2d 1087 (Fla. 3d DCA 1983)…n was effectively abandoned, and the trial court lost jurisdiction of the case. Allen v. Town of Largo, 39 So. 2d 549 (Fla.1949); Kasper Instruments, Inc. v. Maurice, 394 So. 2d 1125 (Fla. 4th DCA 1981); Scott-Whitaker Co. v. Joyce Properties, Inc., 155 So. 2d 661 (Fla. 3d DCA), cert. denied, 159 So. 2d 651 (Fla.1963); Chambers v. Chambers, 143 So. 2d 656 (Fla. 3d DCA 1962); Frank v. Pioneer Metals, Inc., 114 So. 2d 329 (Fla. 3d DCA 1959). See Winn-Dixie Stores, Inc. v. Codomo, 372 So. 2d 952, 953 (Fla. 3d DC…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State of Fla. ex rel. Eugene W. Owens v. Honorable Tillman Pearson, 156 So. 2d 4 (Fla. 1963)
- 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)
- Seiferth v. Seiferth, 121 So. 2d 689 (Fla. 3d DCA 1960)
- Chambers v. Chambers, 143 So. 2d 656 (Fla. 3d DCA 1962)