ROBERT S. SHUTE, APPELLANT,
v.
KEYSTONE STATE BANK AND MRS. EDWARD J. HUTSON ET AL., APPELLEES

Fla. 1st DCA | 1963-12-10
No. E-383
STURGIS, C. J., and CARROLL, DONALD K., J., concur.
159 So. 2d 106 Florida District Court of Appeal, First District (1963) Negative Treatment
Cited by 27 cases

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Synopsis

The court clarifies that a final decree dismissing fewer than all defendants must be appealed as a final order, not an interlocutory one, to avoid forfeiture of the right to appeal.


Holding

An order dismissing a cause with prejudice as to fewer than all defendants is a final order and must be appealed as such, not as an interlocutory appeal.


Facts & Procedural History

Plaintiff Shute appealed an order dismissing two of four defendants with prejudice via an interlocutory appeal. The appellees moved to dismiss the app…

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Opinion of the Court
RAWLS, Judge.

RAWLS, Judge.

Robert S. Shute instituted this action in chancery against four defendants. Upon motion of two of the defendants for sum*107mary decree, the chancellor entered a final summary decree of dismissal as to those two defendants, which decree stated: “* * the cause as to said defendants is hereby dismissed with prejudice * * From this decree plaintiff Shute filed a notice of interlocutory appeal and proceeded according to Florida Appellate Rule 4.2, 31 F.S.A., governing interlocutory appeals.

This appeal arises out of a situation which has caused confusion among the members of the bench and the bar for many years; that is, whether such a decree as confronts us here is a final decree or an interlocutory decree. Even before the adoption of the Appellate Rules, the Florida Supreme Court has held that an order dismissing a cause with prejudice is a final judgment.1 This precedent was carried forward under the Appellate Rules, and it is now clear that an order dismissing a complaint even when leave to amend within a specific time is authorized, is an appealable final order.2 However, only recently has the confusion—arising where a final order is entered against less than all defendants— been laid to rest by our sister court, the Second District Court of Appeal, in two cases which concisely hold that such “split” judgments or decrees when final must be appealed or the right will be forfeited by the passage of time.3

Since the decree in the instant cause was final as to two defendants, the method of review available to plaintiff Shute was by appeal pursuant to Florida Appellate Rule 3 and not by interlocutory appeal. The appellees by motion have raised the question of whether such an improperly prosecuted appeal should be dismissed.

Prior to the adoption of the Florida Appellate Rules, interlocutory orders and decrees in equity were reviewable by proceedings in the nature of certiorari, but unauthorized use of certiorari had been held to be subject to dismissal. A recent case4 so holding based its decision upon the positive wording of Rule 3.1, F.A.R., towit:

"Except where petitions for certiorari are permitted by law or by these rules, all appellate review shall be by appeal.”

and upon prior decisions of the Supreme Court of Florida which held:

“ * * * [Notwithstanding the statute which provides that an improvident appeal may be treated as a petition for certiorari, a petition for certiorari ta review an order reviewable only by-appeal can not be treated as an appeal-See Bartow Growers Processing Corporation v. Florida Growers Processing Cooperative, Fla.1954, 71 So.2d 165; Jones et al. v. Johnson et al., Fla.App.1957, 98 So.2d 506; F.S. § 59.45, F.SA.”

Since the statute 5 authorizing review of interlocutory orders or decrees in equity by proceedings in the nature of certiorari was superseded by the adoption of Florida Appellate Rule 4.2 providing for interlocutory appeals, it does not necessarily follow that an improvident interlocutory appeal should meet with the same fate heretofore decreed to a petition for certiorari to review final decrees. There are several reasons for this difference.

First, appellate jurisdiction is- primarily acquired in both a “full” appeal and: in an interlocutory appeal by the timely filing of the notice of “appeal”. Notice was-filed in the instant case though improperly designated. Where the judgment, order or *108decree is of a nature as will support an appeal, improper designation of the notice of appeal will not alone affect the jurisdiction of the appellate court in the absence of other nonjurisdictional factors, and this Court has been lenient in considering improperly designated appeals.6

Secondly, interlocutory appeals provide a quick and limited review of narrow scope for certain interlocutory orders and decrees, so improperly proceeding' by this faster method when one should have sought review by full appeal, cannot be said to be detrimental to the appellees in the absence of a positive showing of prejudice.

Finally, the purpose of the rules of appellate procedure is primarily for the expeditious and proper outline of travel for litigants in the prosecution of an appeal. It is not the purpose of said rules to preclude one from perfecting an appeal when timely notice of same properly vests - jurisdiction of the cause in the proper appellate tribunal. The courts have generally exercised broad discretion “in determining whether the entertaining of an appeal will serve most expeditiously the interest of the litigants and the efficient administration of justice”.7 Due to the confusion of many years as to whether or not a decree of the type now sought to be reviewed was final or interlocutory and the failure to find any prejudice to appellees, we hereby exercise our broad discretion and entertain this appeal even though appellant pursued the faster method of interlocutory appeal. In view of the circumstances herein related, this Court will treat appellant’s detailed appendix as the record-on-appeal, and appellees are hereby given ten days within which to file cross assignments of error, if so advised, and the same period of time in which to file directions to the clerk designating additional portions of the record as may be deemed essential. Otherwise, the progress of the appeal shall be in accordance with the regular time schedule.

Motion to dismiss is denied.

STURGIS, C. J., and CARROLL, DONALD K., J., concur.


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Citator

Cited By (14 total)

  • Wash. Sec. Co. v. Tracy's Plumbing & Pumps, Inc., 166 So. 2d 680 (Fla. 2d DCA 1964)
    …v. Italian-American Club, Fla.App.1960, 122 So. 2d 228, a chancery suit. Incidentally the Womack case, a law action as stated, has recently been cited with approval by the First District Court of Appeal in Shute v. Keystone State Bank, Fla.App.1963, 159 So. 2d 106, an equity case. In the Shute case the plaintiff improperly brought an interlocutory appeal from a sum [*683] mary final decree in favor of two of the four defendants.4 The court noted the impropriety hut, in its discretion, chose to treat the appe…
  • Kucera v. Kucera, 330 So. 2d 36 (Fla. 4th DCA 1975)
    …pril 9, 1975. We therefore consider this appeal as if it were from the final judgment of April 9, 1975. State ex rel. Poe v. Allen, Fla. 1967, 196 So. 2d 745; DeLoache v. DeLoache, Fla.1973, 274 So. 2d 83; Shute v. Keystone State Bank, Fla.App.1963, 159 So. 2d 106. Accordingly, the motions to dismiss and to relinquish jurisdiction, filed November [*38] 5, 1975, and November 10, 1975, respectively, are denied. The order of this court dated November 4, 1975, is vacated sua sponte, and appellee shall have 20 da…
  • Mieure v. Moore, 330 So. 2d 546 (Fla. 1st DCA 1976)
    …affect the jurisdiction of this court, because the order appealed does support a full appeal. Mendez v. West Flagler Family Ass’n., Inc., 303 So. 2d 1 (Fla.1975). Therefore, we will consider this case as a full appeal. Shute v. Keystone State Bank, 159 So. 2d 106 (Fla.App. 1st, 1964). The question raised by this appeal is whether a joint tortfeasor may seek con [*547] tribution from the other joint tortfeasor who is the spouse and the parent of the injured parties. While driving an automobile occupied by h…

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