HYMAN SCHNEIDER, PETITIONER,
v.
DR. LEON MANHEIMER, DR. GILBERT R. FRIEDMAN, DR. VICTOR DORF AND MOUNT SINAI HOSPITAL OF GREATER MIAMI, INC., A FLORIDA CORPORATION, RESPONDENTS
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The Florida District Court of Appeal addressed whether a petition for writ of certiorari may review a summary final judgment in favor of one defendant in a multi-defendant action still pending against other defendants. The court held that a judgment final as between the parties is appealable by ordinary appeal, not certiorari, even though the cause remains pending against other defendants.
The court held that under modern practice, a judgment final as between the parties is a final judgment and appealable by ordinary appeal, even though the cause remains pending against other defendants. The court overruled the precedent in Ropes v. Lansing and held that the test for finality is the same in law and equity. Accordingly, an adequate remedy by appeal exists and certiorari is not the proper remedy.
“the judgment against the plaintiff and for one of several defendants as in this case is a final judgment and an adequate remedy exists by way of appeal”
The court's holding that a judgment final as between the parties is appealable by ordinary appeal, not certiorari, even though other defendants remain.
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Join FLexlaw to unlock all legal intelligencePetitioner Schneider sought certiorari review of a summary final judgment in favor of defendant Victor Dorf in a lawsuit that included multiple defend…
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We are presented with a petition for writ of certiorari which seeks review of a summary final judgment in favor of respondent, Victor Dorf, who was one of several defendants in a cause still pending in the circuit court. This Court set a hearing upon the question of jurisdiction only. The question to be determined is whether a petition for writ of certiorari will lie to a common law order final as between the plaintiff and one of several defendants but which leaves the cause pending as to other defendants.
We must begin our discussion with the case of Ropes v. Lansing, 46 Fla. 231, 35 So. 863 (1903). The Ropes case was an assumpsit action against two defendants as co-partners. One partner was granted an order dismissing him from the cause. On appeal the order was held not final. From this holding it is argued that under the law of Florida at the present time a judgment against one defendant is not final and appealable until the common-law cause is disposed of.
It is recognized that the rule in equity is that an order dismissing one party or disposing of the claims of that party is final and appealable. Shute v. *76Keystone State Bank, Fla.App.1963, 159 So.2d 106; McMullen v. McMullen, Fla. App.1962, 145 So.2d 568.
The rule in Florida is that certio-rari will not lie to review the judgment of an inferior court if there is any other adequate remedy. Lewis v. Lewis, Fla.1955, 78 So.2d 711; Huie v. Lewis, Fla. 1954, 71 So.2d 498; Pennekamp v. Circuit Court, 155 Fla. 589, 21 So.2d 41 (1945); Sirman v. Conklin, 154 Fla. 304, 17 So.2d 298 (1944); Saffran v. Adler, 152 Fla. 405, 12 So.2d 124 (1943); Kilgore v. Bird, 149 Fla. 570, 6 So.2d 541 (1942).
It is petitioner’s position that he has no other adequate remedy because the order sought to be reviewed is an interlocutory order, and for appeal he would have to wait until the cause has been determined as to the other defendants. The issue here is whether an order final as between the parties is interlocutory because the cause is still pending as to others in an action at law. Under the modern practice there is no reason why an order final in equity should not also be final at common law. See Evin R. Welch & Co. v. Johnson, Fla.App.1962, 138 So.2d 390. The test ordinarily applied as to the finality of the orders is the same in both law and equity. 2 Fla.Jur., Appeals § 43 and cases cited therein.
We therefore hold that the holding in Ropes v. Lansing, 46 Fla. 231, 35 So. 863 (1903) is no longer applicable to the practice in this State or must be limited to the facts therein contained. Therefore, the judgment against the plaintiff and for one of several defendants as in this case is a final judgment and an adequate remedy exists by way of appeal.
This Court is without authority to consider an improvidently filed petition for certiorari as an appeal. The rule has been stated in Pavey v. Pavey, 112 So.2d 589:
“By § 59.45, Fla.Stat., F.S.A., when an appeal is improvidently taken where the remedy provided is certiorari, the appeal may be regarded as a petition for certiorari and thus duly considered by the appellate court. See Scheuermann v. Shamas, Fla.1957, 97 So.2d 314; Alliance for Conservation of Natural Resources in Pinellas County v. Furen, Fla.App.1958, 104 So.2d 803. But there is no provision that allows the converse. An improvident certio-rari may not be treated as an appeal. * * *” 112 So.2d at 591.
Accordingly, the petition for writ of cer-tiorari is dismissed.
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Phillips v. Ostrer, 442 So. 2d 1084 (Fla. 3d DCA 1983)…party is final and appeal-able even if the action remains pending against others. Let’s Help Florida v. DHS Films, Inc., 392 So. 2d 915 (Fla. 3d DCA 1980); Gries Investment Co. v. Chelton, 388 So. 2d 1281 (Fla. 3d DCA 1980); Schneider v. Manheimer, 170 So. 2d 75 (Fla. 3d DCA 1964). It follows that while the other parties’ post-trial motions clearly suspended the rendition and finality of the judgments against them under Fla.R. App.P. 9.020(g), they had no such effect upon the separate judgment for Nord whic…
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Keay v. City OF Coral Gables, 236 So. 2d 133 (Fla. 3d DCA 1970)…See R.C.P. 1.110(g), 30 F.S.A. They sought a writ of certiorari and relief by declaratory decree. Ordinary certiorari will not lie, or issue, when there is another adequate remedy available at law or in equity. Schneider v. Manheimer, Fla.App.1965, 170 So. 2d 75; Mapoles v. Wilson, Fla.App.1960, 122 So. 2d 249; 14 Am.Jur.2d Certiorari § 11; and 5 Fla.Jur. Certiorari § 9. Since the petition showed on its face that petitioner had another adequate remedy which they were seeking by way of equitable relief their…
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The Laborers Int'l Union OF N. Am. v. Pub. Emps. Relations Comm'n & Fla. State Emps. Council # 79, 336 So. 2d 450 (Fla. 1st DCA 1976)…Statutes. The aforesaid order is a reviewable final order under § 120.68(1), Florida Statutes, since it finally adjudicates petitioners’ rights in the proceeding. Shute v. Keystone State Bank, 159 So. 2d 106 (1 DCA Fla.1964); Schneider v. Manheimer, 170 So. 2d 75 (3 DCA Fla.1965). The controversy is a dispute between two unions over whether or not one of them (the petitioners) will be allowed to participate in an election to determine representation of a unit of state employees. This proceeding began when o…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (15 total)
- Barnard Kilgore v. Bird, 150 Fla. 702 (Fla. 1942)
- Nelly Saffran v. Adler, 152 Fla. 405 (Fla. 1943)
- The Alliance FOR Conservation OF Natural Res. IN Pinellas Cnty. v. Furen, 104 So. 2d 803 (Fla. 2d DCA 1958)
- McMULLEN v. McMULLEN, 145 So. 2d 568 (Fla. 2d DCA 1962)
- Evin R. Welch & Co., Inc. v. Johnson, 138 So. 2d 390 (Fla. 2d DCA 1962)
- John D. Pennekamp & the Miami Herald Publ'g Co. v. The Cir. Court of the Eleventh Jud. Cir. in & for Dade Cnty., 155 Fla. 589 (Fla. 1945)
- Shute v. Keystone State Bank & Mrs. Edward J. Hutson, 159 So. 2d 106 (Fla. 1st DCA 1963)
- Scheuermann v. Shamas, 97 So. 2d 314 (Fla. 3d DCA 1957)
- Ropes v. Lansing, 46 Fla. 231 (Fla. 1903)
- Thompson v. Baker, 154 Fla. 303 (Fla. 1944)