JOHN J. CARBERRY, AS BISHOP OF THE DIOCESE OF COLUMBUS, OHIO, A CORPORATION SOLE, APPELLANT,
v.
JOSEPH GIBSON FOLEY ET AL., APPELLEES
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The Bishop of the Diocese of Columbus sought leave to proceed with two allowed accountings against a former agent while appealing an adverse ruling on a third accounting. The court granted the motion, holding that the plaintiff could pursue the two permitted accountings without waiving the right to appeal the unfavorable ruling on the separate third accounting.
The court held that the appellant was entitled to proceed with the two allowed accountings without waiving the right to appeal the adverse ruling on the third accounting, because the three accountings involved separate, severable transactions in distinct brokerage accounts.
“the plaintiff should be entitled to proceed with the two admittedly proper accountings while contesting the ruling with reference to the third”
Establishes the court's holding that the plaintiff can pursue allowed accountings while appealing a separate adverse ruling
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Join FLexlaw to unlock all legal intelligenceJoseph Gibson Foley acted as an agent for three separate brokerage accounts: one for Our Lady of Peace Church, one for Lady of Peace Convents, and one…
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In this suit for accounting an interlocutory appeal by the plaintiff below is pending from an order entered November 17, 1967. The appeal challenges a ruling that the plaintiff was not entitled to an accounting against the defendant Joseph Gibson Foley with respect to one of three brokerage accounts as to which Foley had acted as agent, being the account of Our Lady of Peace Church, Rev. George H. Foley with Francis I. duPont & Co., and numbered 620-6870. In the same order it was held (having been conceded by the defendant Joseph Gibson Foley), that plaintiff was entitled to an accounting from him with respect to the other two brokerage accounts, namely the account in the name of Lady of Peace Convents, Rev. George H. Foley, No. 620-6871 and the account in the name of Our Lady of Peace Altar & Rosary Society, Rev. George H. Foley, No. 620-6782.
The appellant applied to the trial court for leave to proceed with respect to the two allowed accountings notwithstanding his appeal from the provision of the order relating to the other accounting. The trial court denied the request, being of the opinion that it did not have jurisdiction to grant such order because of the pending appeal.
The matter now comes before this court on appellant’s motion to review the order last mentioned, or in the alternative for this court to grant leave to the appellant to proceed in the two allowed accountings without waiving right to appeal from the adverse provision of the order relating to the other or third accounting.
On consideration of the record, and with the benefit of oral argument, this court concludes that the appellant’s motion is meritorious, and leave is hereby granted to the appellant to proceed in the two account-ings to which it was held entitled, and that such proceedings shall not operate as a waiver of the right to review on appeal the adverse provisions of the order relating to the other or third accounting. See McMullen v. Fort Pierce Financing & Construction Co., 108 Fla. 492, 146 So. 567.
Under the law pronounced in the case just cited as applied to the situation presented here, the plaintiff should be entitled to proceed with the two admittedly proper accountings while contesting the ruling with reference to the third. In the McMullen case the contrary was held with reference to an accounting which the court said grew out of a single transaction. Here the three accountings relate to separate transactions in different named and numbered brokerage accounts. Unlike the McMullen case, this case involves controversies which are severable and distinct, so that acceptance of the benefit of the order with respect to the two accountings which were allowed is not inconsistent with an appeal from the ruling on the other.
It is so ordered.
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A-1 Truck Rentals, Inc. v. Vilberg, 222 So. 2d 442 (Fla. 3d DCA 1969)…from orders determining the right to an accounting as appeals from interlocutory orders. Gladman v. Hallam, Fla. App.1958, 104 So. 2d 46; McCann Plumbing Co. v. Plumbing Industry Program, Fla.App.1958, 105 So. 2d 26; Carberry v. Foley, Fla.App.1968, 206 So. 2d 425. This fact suggests to us that judgments determining the right to an accounting are interlocutory orders. We now hold that they are. A close examination of Rules 1.530(b) and 1.530(g), R.C.P., 31 F.S.A., convinces us that they do not apply to inter…
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Carberry v. Foley, 213 So. 2d 635 (Fla. 3d DCA 1968)…arberry v. Foley, Fla.App.1967, 203 So. 2d 214, in which the complaint seeking to establish a constructive trust and an accounting is analyzed and the dismissal of one of the original defendants is approved. Also see Carberry v. Foley, Fla.App.1968, 206 So. 2d 425, wherein this court recognized the right of the trial court to continue with an accounting as to certain accounts which are not involved in this appeal. Reference should be made to the prior opinions which outlines the circumstances under which the…1 / 2
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Heritage Paper Co., Inc. v. Farah, 440 So. 2d 389 (Fla. 1st DCA 1983)…als,1 held that orders finding an entitlement to an accounting, and ordering that the same be had, were non-final but appealable orders. See McCann Plumbing Co. v. Plumbing Industry Program, Inc., 105 So. 2d 26 (Fla. 3d DCA 1958); Carberry v. Foley, 206 So. 2d 425 (Fla. 3d DCA 1968); A-1 Truck Rentals, Inc. v. Vilberg, 222 So. 2d 442 (Fla. 3d DCA 1969). In 1977, however, procedures for taking interlocutory appeals were extensively altered to provide for review of only a limited group of non-final orders “base…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McMullen v. Fort Pierce Fin. & Constr. Co., 108 Fla. 492 (Fla. 1933)
- State ex rel. First Tr. & Sav. Bank v. Southerland, 108 Fla. 433 (Fla. 1933)