BUMBY & STIMPSON, INC., APPELLANT,
v.
PENINSULA UTILITIES CORPORATION, APPELLEE
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Bumby & Stimpson appealed from a summary judgment order dismissing their complaint, but the appeal was dismissed for lack of jurisdiction because the order was not final—it left pending the defendant's compulsory counterclaim that had not yet been resolved.
An order dismissing one party's claim is not a final judgment when it leaves undisposed a compulsory counterclaim between the same parties, and therefore an appeal from such an order is premature and must be dismissed for lack of jurisdiction.
“An order terminating litigation between one party and another is final as to them notwithstanding that in the same case litigation continues between either of those parties and third persons.”
Establishes the general rule for finality of orders, setting up the contrast for the dispositive principle
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Join FLexlaw to unlock all legal intelligenceThe trial court entered a summary judgment on March 12, 1965, dismissing Bumby & Stimpson's complaint and granting judgment in favor of Peninsula Util…
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The appellee has moved to dismiss this appeal on the basis that the order appealed is not final. The appeal is from an order entered in a common law action and this court has jurisdiction on appeal only from final judgments and from interlocutory orders relating to venue or jurisdiction over the person and orders or judgments entered after final judgments (except those relating to motion for new trial or reconsideration). Constitution of the State of Florida, Art. V, § 5(3), F.S.A.; Fla.App.Rules 4.2, 31 F.S.A.
The pertinent history of the case is that on March 12, 1965, the trial court entered “Summary Judgment” as follows:
“Ordered and adjudged that the motion for summary judgment is granted. The plaintiff, Bumby & Stimpson, Inc., shall take nothing by this suit and the defendant, Peninsula Utilities Corporation, shall go hence without day, costs to be hereafter taxed.”
It will be observed that the order is final in form. Nevertheless the order left pending and undisposed defendant’s compulsory counterclaim against the plaintiff. Notice of appeal from the quoted order was filed to this court on April 5, 1965. On May 12, 1965, the trial court entered the following order on the counterclaim:
“This cause came on before the court on the stipulation of the parties for dismissal of the counterclaim without prejudice and the court having approved that stipulation it is
“Ordered and adjudged that the counterclaim be and the same is hereby dismissed without prejudice.”
On September 16, 1965, after the time ap-pellee had filed its brief on this appeal, it moved to dismiss the appeal for lack of jurisdiction of this court to review the order appealed.
A notice of appeal filed prior to rendition of a final judgment or decree cannot confer jurisdiction upon the court. Shaw v. Hill, Fla.App.1959, 114 So.2d 721; Tom v. State ex rel. Tom, Fla.App.1962, 143 So.2d 226. Where an appeal is taken in violation of the rules so that it is not legally sufficient to confer jurisdiction of the subject matter upon the court, the appearance of the appellee cannot of itself give the court jurisdiction of the subject matter, and the appeal should be dismissed by the court sua sponte. Provident Savings Bank & Trust Co. v. Devito, 1929, 98 Fla. 1076, 125 So. 235. A court has no power to act in the absence of the jurisdic*416tional foundation for the exercise of the power. State ex rel. Diamond Berk Ins. Agency v. Carroll, Fla.1958, 102 So.2d 129; Schutzer v. City of Miami, Fla.App.1958, 99 So.2d 729.
The question thus becomes: Was the order of March 12th, 1964, which was final in form but which left undisposed defendant-appellee’s counterclaim, a final judgment? An order terminating litigation between one party and another is final as to them notwithstanding that in the same case litigation continues between either of those parties and third persons. Evin R. Welch & Co. v. Johnson, Fla.App.1962, 138 So.2d 390. But the appositive is also true. An order which does not dispose of the entire claim between the parties is not final. Fontainebleau Hotel Corp. v. Young, Fla.App.1964, 162 So.2d 303.
The appeal must be and is dismissed. It is so ordered.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (15 total)
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S. L. T. Warehouse Co. v. Wilmott Webb, 304 So. 2d 97 (Fla. 1974)…o be appealable. However, this court held in Midstate Hauling Co. v. Liberty Mutual Ins. Co., Fla.App. 1966, 189 So. 2d 826, that such an order is not appealable, relying upon Bumby & Stimpson, Inc. v. Peninsular (sic) Utilities Corp., Fla.App.1965, 179 So. 2d 414. The Pullum case emanated out of the Second District Court of Appeal, but was not followed by that court in Potts v. Hayden, Fla.App.1971, 249 So. 2d 726, wherein it was held that an appeal would not lie from a final summary judgment on a countercla…1 / 2
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del Castillo v. Ralor Pharmacy, Inc., 512 So. 2d 315 (Fla. 3d DCA 1987)…claim was a compulsory one, the order dismissing it was merely interlocutory and was not then subject to appeal.13 See Taussig v. Insurance Company of North America, 301 So. 2d 21 (Fla. 2d DCA 1974); Bumby & Stimpson, Inc. v. Peninsula Utils. Corp., 179 So. 2d 414 (Fla. 3d DCA 1965). Instead, like all non-final orders, it is deemed to have merged into, and is properly reviewable on appeal from the appropriate later final judgment. Auto Owners Ins. Co. v. Hillsborough County Aviation Auth., 153 So. 2d 722 (Fla…
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Blue v. Weinstein, 381 So. 2d 308 (Fla. 3d DCA 1980)…as it would then be considered inseparable from the main claim and an order dismissing such a compulsory counterclaim would not be final. S. L. T. Warehouse Co. v. Webb, 304 So. 2d 97 (Fla.1974); Bumby & Stimpson, Inc. v. Peninsula Utilities Corp., 179 So. 2d 414 (Fla. 3d DCA 1965). . In the event the defendants plead a proper cause of action for abuse of process by amendment upon remand, it should be noted that the trial court may, in its discretion, sever the abuse of process counterclaim from the main ac…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Honorable Charles A. Carroll, 102 So. 2d 129 (Fla. 1958)
- Fontainebleau Hotel Corp. v. Young, 162 So. 2d 303 (Fla. 3d DCA 1964)
- Evin R. Welch & Co., Inc. v. Johnson, 138 So. 2d 390 (Fla. 2d DCA 1962)
- Shaw v. Hill, 114 So. 2d 721 (Fla. 2d DCA 1959)
- Schmit v. Moore, 98 Fla. 1100 (Fla. 1929)
- Provident Sav. Bank & Tr. Co. v. Devito, 98 Fla. 1076 (Fla. 1929)
- Schutzer v. The City OF Miami, 99 So. 2d 729 (Fla. 3d DCA 1958)
- TOM v. State of Fla. ex rel. Johnny TOM, 143 So. 2d 226 (Fla. 2d DCA 1962)