J. E. MCLEAN, J. E. MCLEAN, JR., AND J. E. MCLEAN, III, CO-PARTNERS, TRADING AND DOING BUSINESS AS J. E. MCLEAN & SONS, APPELLANTS,
v.
PLANT FRUIT COMPANY, A FLORIDA CORPORATION, APPELLEE
This matter is before the Court on the Motion of the appellee to dismiss.
After the filing of an amended complaint at law for damages for breach of contract, answer and counterclaim were filed. The Court entered a summary judgment dismissing the amended complaint, but left pending the counterclaim. Under such circumstances the judgment dismissing the complaint is a partial summary judgment and therefore interlocutory, and not appeal-able within the meaning of Florida Statutes, § 59.2(1), F.S.A. and Florida Appellate Rule 3.2, subd. b, 31 F.S.A.
Accordingly, the motion to dismiss is granted.
SMITH, C. J., and ALLEN and ANDREWS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Brown v. Wood, 202 So. 2d 125 (Fla. 2d DCA 1967)…e dismissal, but this court held that since defendant was ordered to answer the third count, the dismissal of Counts 1 and 2 was an interlocutory order at law, not final, and therefore not appealable. Cf. McLean v. Plant Fruit Company, Fla.App.1964, 167 So. 2d 332; Doby v. Griffin, Fla.App.1962, 144 So. 2d 873. For reasons discussed infra, we find that Counts 4 and 5 of plaintiffs’ amended complaint do not state a separate cause of action but merely another theory of recovery. Accordingly, under the authorit…
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Taussig v. Ins. Co. OF N. Am., 301 So. 2d 21 (Fla. 2d DCA 1974)…p., Fla.App.3d, 1965, 179 So. 2d 414. . S. L. T. Warehouse Co. v. Webb, Fla.App. 4th, 1974, 294 So. 2d 712; Midstate Hauling Co. v. Liberty Mutual Ins. Co., Fla.App. 4th, 1966, 189 So. 2d 826. . Fla.App.2d 1971, 249 So. 2d 726. . Fla.App.2d 1964, 167 So. 2d 332. . Fla.App.2d 1973, 287 So. 2d 739. . Fla.App.2d 1967, 198 So. 2d 658. . See generally the discussion beginning at 6 Moore’s Federal Practice, § 54.04. . Dickinson v. Petroleum Conv. Corp., 1949, 338 U.S. 507, 70 S.Ct. 322, 94 L.Ed. 299. . See…
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Morse v. Hendry Corp., 177 So. 2d 31 (Fla. 2d DCA 1965)…ndant has filed its motion to •dismiss the appeal on the ground that it is ■an interlocutory order at law not relating to venue or jurisdiction over the person ■and, therefore, nonappealable. The case of McLean v. Plant Fruit Company, Fla.App.1964, 167 So. 2d 332, was an action wherein an answer and counterclaim were filed and summary judgment was entered dismissing the amended complaint, hut left pending the counterclaim. This court held that summary judgment dismissing the amended complaint, but leaving pe…
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