HENRY BORREGO, APPELLANT,
v.
WALTER H. KESSLER AND I. Z. KESSLER, APPELLEES
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The Florida District Court of Appeal dismissed an appeal as untimely because the petition for rehearing was not filed within the ten-day period required by law, and thus did not toll the time for filing the notice of appeal.
No, the appeal was not timely filed because the petition for rehearing was not filed within the ten-day period, and therefore did not toll the time for filing the notice of appeal.
“It was suggested to the attorneys for each of the parties that briefs be filed on the question of jurisdiction.”
This indicates the court raised the issue of its own jurisdiction regarding the timeliness of the appeal.
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Join FLexlaw to unlock all legal intelligenceThe final decree was recorded on September 29, 1964. A petition for rehearing was filed and served on October 13, 1964. The notice of appeal was filed…
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The above styled case was argued before this Court on. February 24, 1966, at which time the question arose as to whether the appeal was timely filed.
It was suggested to the attorneys for each of the parties that briefs be filed on the question of jurisdiction. Such briefs have been filed and it would seem that, under the factual situation, a petition for rehearing was not filed within the ten day period of the recordation of the final decree, which was September 29, 1964. The petition for rehearing was filed and served below on October 13, 1964. Notice of appeal was filed and served December 30, 1964. Since the petition for rehearing was not timely, it would not toll the time for appeal and, therefore, the appeal herein is dismissed. See Ganzer v. Ganzer, Fla.1956, 84 So.2d 591; State ex rel. Owens v. Pearson, Fla.1963, 156 So.2d 4; and Kippy Corporation v. Colburn, Fla.1965, 177 So.2d 193.
Dismissed.
ALLEN, C. J., and PIERCE, J., and LOVE, WM. K., Associate Judge, concur.
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Citator
Cited By
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Casto v. Casto, 404 So. 2d 1046 (Fla. 1981)…nt — the spreading of the judgment upon the court’s official records. See, e. g., Palladeno v. Oesterle, 345 So. 2d 382 (Fla. 3d DCA 1977); Becker v. King, 307 So. 2d 855 (Fla. 4th DCA), cert. dismissed, 317 So. 2d 76 (Fla.1975); Borrego v. Kessler, 183 So. 2d 695 (Fla. 2d DCA 1966); Bannister v. Allen, 127 So. 2d 907 (Fla. 3d DCA 1961). The respondent urges that we approve the district court’s conclusion that a new and different construction of this civil procedure term is needed because this Court changed t…
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Dibble v. Dibble, 377 So. 2d 1001 (Fla. 3d DCA 1979)…nowledged that there are many existing decisions which state that the time for serving a petition for rehearing runs from the date of recording, rather than filing. E. g., Palladeno v. Oesterle, 345 So. 2d 382 (Fla. 3d DCA 1977); Borrego v. Kessler, 183 So. 2d 695 (Fla. 2d DCA 1966); Bannister v. Allen, 127 So. 2d 907 (Fla. 3d DCA 1961).1 Perhaps paradoxically, we think that these cases support, rather than conflict with, our decision. This is so because each of them was decided when the “old” definition of “…
Authorities Cited
- The Kippy Corp. v. Sherwood Colburn, 177 So. 2d 193 (Fla. 1965)
- State of Fla. ex rel. Eugene W. Owens v. Honorable Tillman Pearson, 156 So. 2d 4 (Fla. 1963)
- Ganzer v. Ganzer, 84 So. 2d 591 (Fla. 1956)