FRED B. NOBLE, PETITIONER,
v.
ERICE E. MCNEAL AND JIMMIE S. MCNEAL, HIS WIFE, RESPONDENTS
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The court denied a petition for writ of certiorari seeking to review an interlocutory order that refused to strike affirmative defenses from a mortgagee's answer in a contract dispute. The court held that certiorari is unavailable for interlocutory orders unless they involve venue or jurisdiction, since the issues can be reviewed after final judgment.
The court held that certiorari should be denied because interlocutory orders may only be appealed when they raise questions of venue or jurisdiction, and the challenged defenses could be reviewed after final judgment through ordinary appeal.
“certiorari would be granted only in; those cases in which it clearly appears-there exists no adequate remedy available-to petitioner by appeal after final judgment”
Establishes the standard for granting certiorari - requiring no adequate alternative remedy
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Join FLexlaw to unlock all legal intelligenceRespondents received a deed containing a mortgage assumption clause, occupied the property, and made mortgage payments for approximately two years bef…
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This is on petition for writ of certiorari to review interlocutory order of Circuit Court, Duval County, Florida denying motion to strike from the answer of the defendants certain allegations of defense.
Respondents accepted delivery of a deed containing a mortgage assumption clause,, occupied the premises and made payments-on the assumed mortgage for approximately two years before defaulting in the payments. Plaintiff-appellee sued at law on the note. Respondents’ answer asserted,, inter alia, as defenses that defendants-respondents did not intend to become personally obligated to pay the mortgage, did not authorize anyone to type the assumption clause in the deed, that there was no-consideration for the assumption clause- and that said defendants had not read the-deed and did not know of “this state of affairs” until served with complaint im this cause. Petitioner-plaintiff filed motion to strike the portions of the answer-asserted as defenses, related supra, on the-ground the same did not constitute a defense. The court denied the motion and the matter appears before this court on petition for writ of certiorari to review the order of the circuit court denying the motion to strike.
Appeal from interlocutory order im a common-law action may be taken only where such order raises a question of’ venue or jurisdiction over the person.. Florida Appellate Rule 4.2, 31 F.S.A.
This court has repeatedly held! that certiorari would be granted only in; those cases in which it clearly appears-there exists no adequate remedy available-to petitioner by appeal after final judgment. To grant the writ sought would lead toward an unreasonable burden on this court and at the same time tend toward an unwarranted interference in trial procedures. The record in this case does not reveal that irreparable damage will be done to petitioner by denying the petition at this time as the same matter may be reviewed by this court, if desired, after final judgment and appeal therefrom. See State Road Department of Florida v. Bainbridge et al., Fla.App., 171 So.2d 609; Pullman Co. v. Fleishel et al., Fla.App., *128101 So.2d 188, and Boucher v. Pure Oil Company, etc., Fla.App., 101 So.2d 408.
For the foregoing reasons, certiorari is denied.
WIGGINTON, Acting C. J., and STURGIS, J., concur.
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Citator
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Shearson v. Vouis, 247 So. 2d 733 (Fla. 3d DCA 1971)…rtiorari. Both proceedings were consolidated for appellate review. Having found that an interlocutory appeal is not available to review the lower court order in a common law action, we dismiss the interlocutory appeal. Noble v. McNeal, Fla.App.1965, 179 So. 2d 126; Flagler Federal Savings and Loan Association of Miami v. Whiting, Fla.App. 1963, 148 So. 2d 555. However, all the matters sought to be reviewed in both proceedings will be considered upon the petition for certiorari. Respondent George Vouis filed…
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Modine Mfg. Co. v. ABC Radiator, Inc., 367 So. 2d 232 (Fla. 3d DCA 1979)…en the denied extraordinary motion is viewed in its true context. An appellate court will not ordinarily interfere by extraordinary writ with the actions of a trial court when the trial court’s orders are reviewable upon appeal. See Noble v. McNeal, 179 So. 2d 126 (Fla. 1st DCA 1965). It follows that the denial of the motion to require compliance with the mandate was not a ruling upon the merits of Modine’s claim that the counterclaim was outside the directions of this court on the remand. The denial of the m…
Authorities Cited
- Boucher v. The Pure OIL Co., 101 So. 2d 408 (Fla. 1st DCA 1957)
- The Pullman Co. v. Fleishel, 101 So. 2d 188 (Fla. 1st DCA 1958)
- State Rd. Dep't of Fla. v. Eustas M. Bainbridge and Dora M. Bainbridge, 171 So. 2d 609 (Fla. 1st DCA 1965)