EDWIN J. SANDERS, JR., EXECUTOR OF THE ESTATE OF HUBERT S. STEELE, DECEASED, APPELLANT,
v.
FRANK MCCAUGHEY, APPELLEE
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The Estate of Hubert S. Steele appeals a judgment entered against it for $1,994.70. The court affirms the judgment, finding that the appellant waived its motion for rehearing by filing a notice of appeal before the lower court could rule on the motion, thereby divesting the lower court of jurisdiction.
The appellant waived its motion for rehearing by filing the notice of appeal on November 30, 1965, before the lower court could rule on the motion. Once the appeal was taken, the lower court lost jurisdiction and had no authority to modify or reverse the October 4, 1965 judgment. The October 4, 1965 judgment is affirmed.
“We find that appellant waived his October 14, 1965, motion for rehearing when he filed his November 30, 1965, notice of appeal before the lower court could rule on his motion.”
Establishes the key holding that filing a notice of appeal before the lower court rules on a motion for rehearing constitutes a waiver of that motion.
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Join FLexlaw to unlock all legal intelligenceOn October 4, 1965, final judgment was entered against the Estate of Hubert S. Steele for $1,994.70, plus interest and costs. The appellant filed a mo…
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The appellant, defendant below, has filed an appeal from a final judgment entered October 4, 1965, against the Estate of Hubert S. Steele for $1,994.70, plus interest and costs.
We will review certain procedural irregularities which occurred in the court below as well as on this appeal.
On October 4, 1965, final judgment was entered against appellant. Appellant filed, on October 14, 1965, a motion for rehearing directed toward that judgment and on November 22, 1965, a hearing was held thereon. Before decision on the motion for rehearing, appellant, on November 30, 1965, filed his notice of appeal here seeking to review the October 4, 1965, judgment. On December 7, 1965, appellant filed assignments of error, one being the lower court’s failure to grant his motion for rehearing. On May 25, 1966, the lower court granted the motion for rehearing, reversed its judgment of October 4, 1965, and entered final judgment for the appellant-defendant. On June 2, 1966, the plaintiff-appellee filed his petition for rehearing, which the lower court granted. The lower court then entered an order vacating its order of May 25, 1966, because it found that appellant, by filing his notice of appeal before the lower court could rule on the motion for rehearing, waived his motion.
Appellant now seeks to have the May 25, 1966 judgment reinstated.
We find that appellant waived his October 14, 1965, motion for rehearing when he filed his November 30, 1965, notice of appeal before the lower court could rule on his motion.
We comment at this time that the lower court lost jurisdiction when the appeal was taken to this court on November 30, 1965, by the appellant. Therefore, the lower court had no authority to set aside the judgment of October 4, 1965, appealed *775to this court, nor to enter the judgment on May 25, 1966, in favor of the appellant. Both the final judgment entered on May 25, 1966, and the order of June 16, 1966, were nullities. See: Perez v. City of Tampa, Fla.App.1966, 181 So.2d 571; Bannister v. Hart, Fla.App.1962, 144 So.2d 853.
Upon review of the merits, we conclude that the October 4, 1965, judgment in favor of the appellee and against'the Estate of Hubert S. Steele for $1,994.70, plus interest and costs, should be and is hereby affirmed.
Affirmed.
LILES, J., and WILLSON, J. H., Associate Judge, concur.
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The State of Fla. for Use & Benefit of Dade Cnty. v. Pub. Serv. Mut. Ins. Co., 311 So. 2d 123 (Fla. 3d DCA 1975)…ereto (300 So. 2d 92). However, aside from the merits of the order vacating the judgment, as to which we express no opinion here, we hold it was error to vacate the judgment during the pendency of the said appeal. Sanders v. McCaughey, Fla.App.1966, 192 So. 2d 774; Liberman v. Rhyne, Fla.App. 1971, 248 So. 2d 242. The order appealed from is reversed, and the final judgment entered by the trial court on November 21, 1973 is reinstated. It is so ordered.…
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Sanders v. McCAUGHEY, 201 So. 2d 464 (Fla. 1967)…Certiorari denied without opinion. 192 So. 2d 774.…
Authorities Cited
- Forrest L. Bannister and Pattie R. Bannister v. Deane Loes Hart, Jr., 144 So. 2d 853 (Fla. 2d DCA 1962)
- Gabriel Perez et ux. v. City OF Tampa, 181 So. 2d 571 (Fla. 2d DCA 1966)