MIDSTATE HAULING COMPANY, INC., APPELLANT,
v.
LIBERTY MUTUAL INSURANCE COMPANY, A CORPORATION, APPELLEE
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The court held that an order dismissing a counterclaim is not an appealable final judgment and must be dismissed sua sponte.
Midstate Hauling Company attempted to appeal an interlocutory order dismissing its counterclaim and striking defenses. The issues raised did not invol…
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Midstate Hauling Company attempts to appeal an interlocutory order at common law dismissing its counterclaim and striking certain of its defenses.
Florida Appellate Rule 4.2, 31 F.S.A., provides for interlocutory appeals in common law proceedings only upon matters affecting venue or jurisdiction as authorized by Article V, Section 5(3), of the Constitution of Florida, F.S.A. The issues of venue or jurisdiction are not raised; therefore, the appeal is clearly not an interlocutory appeal.
We then consider the finality of the order appealed to determine if the matter may be considered as a full appeal under F.A.R. 3.2. It has been held that the dismissal of a complaint, although final in form, which left pending a counterclaim was not appealable. Bumby & Stimpson, Inc. v. Peninsular Utilities Corporation, Fla.App. 1965, 179 So.2d 414. The same reasoning would apply to an order dismissing a counterclaim.
*827Accordingly, the appeal not being interlocutory and the court not having completed its judicial labors in the cause of action between the parties, such is not an appeal from a final judgment and the cause must he dismissed. The matters determined by said order can properly be raised on an appeal from a final judgment.
Dismissed sua sponte.
ANDREWS, Acting C. J., WALDEN, J., and GONZALEZ, JOSE A., Jr., Associate Judge, concur.
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S. L. T. Warehouse Co. v. Wilmott Webb, 304 So. 2d 97 (Fla. 1974)…, Fla.App.1966, 184 So. 2d 454, as authority for the finality and appealability of the order in question. These cases do hold such an order to 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…
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Taussig v. Ins. Co. OF N. Am., 301 So. 2d 21 (Fla. 2d DCA 1974)…open for consideration. . Bumby & Stimpson, Inc. v. Peninsula Util. Corp., 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. Petrol…
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Ryder Truck Lines, Inc. v. Pough, 392 So. 2d 590 (Fla. 3d DCA 1981)…m, no appeal could be taken from either until the final disposition of both the claim and the counterclaim. Taussig v. Insurance Company of North America, 301 So. 2d 21 (Fla.2d DCA 1974); Midstate Hauling Company v. Liberty Mutual Insurance Company, 189 So. 2d 826 (Fla.4th DCA 1966); Bumby & Stimpson, Inc. v. Peninsula Utilities Corporation, 179 So. 2d 414 (Fla.3d DCA 1965). Under Section 768.31(4), Florida Statutes (1977), a judgment for contribution may be maintained whether ór not the judgment has been e…
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- Bumby & Stimpson, Inc. v. Peninsula Utils. Corp., 179 So. 2d 414 (Fla. 3d DCA 1965)