THEODORE SEIGEL, ANN SEFGEL AND WILLIAM BOWEN FLYNN, APPELLANTS,
v.
ISIDORE SOLOMON, APPELLEE
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The Florida District Court of Appeal held that a supersedeas bond was improperly required when an appeal was taken from an order granting a new trial after a final judgment had been vacated. The court reasoned that once an appeal is filed, the trial court loses jurisdiction over the subject matter of the appeal, rendering the supersedeas bond unnecessary.
No, the supersedeas bond was improperly required. The filing of a notice of appeal deprives the trial court of jurisdiction over the subject matter of the appeal, meaning there was nothing pending in the trial court that could be superseded.
“The filing of the notice of appeal in the appellate court deprives the trial court of further jurisdiction over the subject matter of the appeal.”
Establishes the legal principle that an appeal divests the trial court of jurisdiction.
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Join FLexlaw to unlock all legal intelligenceAfter a jury verdict and final judgment for the defendants, the trial court vacated the judgment, directed a verdict for the plaintiff on liability, a…
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ON MOTION
This appeal is before the Court on appellants’ motion pursuant to Rule 5.10, Florida Appellate Rules, 31 F.S.A., to discharge supersedeas bond. The appellants, who were defendants in the trial court, received a jury verdict and final judgment was entered thereon. Thereafter, the trial court on the motion of the plaintiff vacated the final judgment, directed a verdict for the plaintiff on the issue of liability-and granted a new trial for the plaintiff on the issue of damages. The defendant brought an appeal pursuant to Florida Statute 59.04, F.S.A. from the order vacating the final judgment and granting a new trial. The trial court immediately set the cause for a new trial. The appellants moved the trial court to stay the new trial on damages pending appeal from the order granting a new trial. The trial court granted a stay, conditioning it upon the filing of a supersedeas bond in the amount of $100.
An appeal from an order granting a new trial is a right given by statute and is therefore not considered interlocutory in nature. It may be noted that a final judgment has been entered and vacated. The filing of the notice of appeal in the appellate court deprives the trial court of further jurisdiction over the subject matter of the appeal. We therefore hold that there was nothing pending in the trial court which could be superseded. See Thursby v. Stewart, 103 Fla. 990, 138 So. 742, 751 (1931); State v. Florida State Turnpike Authority, Fla.1961, 134 So.2d 12, 15.
*502.The motion to discharge supersedeas is granted and it is so ordered.
(dissenting).
I respectfully dissent. An order granting a new trial in a law action is interlocutory, in that rather than to finally dispose of the cause and end the judicial labor therein it leaves the case pending and directs further proceedings designed to lead to and result in a final judgment. It is only by virtue of statute (§ 59.04, Fla.Stat., F. S.A.) that such an order may be appealed. Under Florida Appellate Rule 5.1 which is applicable, the granting of stay of the new trial pending appeal from the order directing it was discretionary and if granted (as the trial court did) was properly conditioned as the rule requires “upon appellant’s giving a good and sufficient bond.” I can not agree that an appeal from an order granting a new trial in a law action operates to prevent the trial judge from proceeding with a new trial during the period of the appeal, in the absence of a stay order (with bond) as contemplated under Rule 5.1 F.A.R. For those reasons I would deny the appellant’s motion.
' CHARLES CARROLL, Chief Judge
(dissenting).
I respectfully dissent. An order granting a new trial in a law action is interlocutory, in that rather than to finally dispose of the cause and end the judicial labor therein it leaves the case pending and directs further proceedings designed to lead to and result in a final judgment. It is only by virtue of statute (§ 59.04, Fla.Stat., F. S.A.) that such an order may be appealed. Under Florida Appellate Rule 5.1 which is applicable, the granting of stay of the new trial pending appeal from the order directing it was discretionary and if granted (as the trial court did) was properly conditioned as the rule requires “upon appellant’s giving a good and sufficient bond.” I can not agree that an appeal from an order granting a new trial in a law action operates to prevent the trial judge from proceeding with a new trial during the period of the appeal, in the absence of a stay order (with bond) as contemplated under Rule 5.1 F.A.R. For those reasons I would deny the appellant’s motion.
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Bowen v. Willard, 340 So. 2d 110 (Fla. 1976)…e Rule 4.2, and that Section 59.04 had been adopted as a rule of appellate procedure pursuant to Florida Appellate Rule 1.4. In so ruling we relied upon and cited with approval the decision of the Third District Court of Appeal in Seigel v. Solomon, 201 So. 2d 501 (Fla. 3d DCA 1967). There it was held that an appeal under Section 59.04 should be treated as an appeal of a final judgment for the purposes of supersedeas under Florida Appellate Rules 5.1 and 5.2. It is consistent with the conversion of Section 59…
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Clement v. Aztec Sales, Inc., 297 So. 2d 1 (Fla. 1974)…holding of the District Court for the reasons set out below. We have carefully considered this case, together with other case authority construing Fla.Stat. § 59.04, F.S.A., including Marley v. Saunders, 249 So. 2d 30 (Fla.1971); Seigel v. Solomon, 201 So. 2d 501 (Fla.App.3d, 1967), affirmed 207 So. 2d 79; and Means v. Douglas, 110 So. 2d 88 (Fla.App.1st, 1959). This Court has approved the holding that an order granting a new trial is a substantive right given by Fla.Stat. § 59.04, F.S.A., and is not interlo…
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Lafleur v. Castlewood Int'l Corp., 285 So. 2d 449 (Fla. 3d DCA 1973)…s was appealable under the express provisions of Section 59.04. This court has recognized that an order granting a new trial is a right given by Section 59.04 and is therefore not considered interlocutory in nature. Seigel v. Solomon, Fla.App.1967, 201 So. 2d 501. In Means v. Douglas, Fla.App.1959, 110 So. 2d 88, the First District Court of Appeal also considered Section 59.04 and held that the statute confers a right to appeal which creates an exception to the general rule that appeals at law lie only from…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Thursby v. Stewart, 103 Fla. 990 (Fla. 1931)
- Rice v. Cochran, 134 So. 2d 12 (Fla. 1961)