THE THOMKIN CORPORATION
v.
CITY OF MIAMI BEACH, AS SUCH AND AS REPRESENTATIVE OF THE GENERAL PUBLIC; ET AL.
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The Florida Supreme Court affirmed an order denying a motion for rehearing, holding that an appeal could not be taken from the denial of a rehearing when the appeal was not also taken from the final decree itself. The court granted the appellees' motion to affirm.
No, an appeal cannot be taken solely from an order denying a petition for rehearing if the appeal is not also taken from the final decree. The appeal from the denial of the rehearing is untimely.
“since the motion for rehearing presents no matter showing error that this Court can consider on the appeal taken only from the order denying a rehearing and not from the final decree.”
This quote establishes the court's reasoning that the appeal was procedurally flawed because it only targeted the denial of the rehearing and not the final decree.
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Join FLexlaw to unlock all legal intelligenceThe appellant, Thomkin Corporation, appealed an order denying its petition for a rehearing. The final decree in the case was entered over six months p…
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This cause is before the Court on an appeal taken from an order dated April 28, 1928, entered by the Circuit Court of Dade County, Florida, overruling and denying a petition of the plaintiff below, appellant here, for a rehearing in this said cause. The final decree, as shown by the transcript, was dated February 5, 1938, and an appeal was not taken from the final decree. We have examined the petition for rehearing and the different exhibits attached, and made a part thereof, and have considered the materiality thereof and fail to find error on the part of the lower court in making the order appealed from, since the motion for rehearing presents no matter showing error that this Court can consider on the appeal taken only from the order denying a rehearing and not from the final decree.
Counsel for appellees filed a motion in this court to affirm *361the order appealed from and have assigned a number of. grounds therefor, one of which being that the final decree was entered more than six months prior to the entry of the pending appeal and for said reason no appeal here would lie. It is not necessary to recite the other grounds of the motion to affirm, as we think and believe the appeal here is in principle controlled by Gasque v. Ball, 71 Fla. 257, 71 So. 329. The motion to affirmed the order appealed from is granted.
It is so ordered.
Terrell, C. J., and Whitfield, Brown and Chapman, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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City OF Miami Beach v. The Miami Beach Improvement Co., 153 Fla. 107 (Fla. 1943)…submerged lands adjacent or appurtenant thereto.” Litigation over the years has arisen out of these real estate developments. See 23rd Street Realty Corp. v. City of Miami Beach, 140 Fla. 257, 191 So. 464; The Tomkins Corp. v. City of Miami Beach, 135 Fla. 360, 185 So. 422, as well as other suits. The factual background of this suit would support other recitals but our efforts here have been restricted to the pertinent facts absolutely necessary to develop the issues in controversy between these litigants…1 / 3
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O'Steen v. Thomas, 146 Fla. 73 (Fla. 1941)…ust 12, 1940 and the plaintiff had six months from that date in which to appeal. [*76] We are not unmindful of what we said in the opinion in the case of Gasque v. Ball, 71 Fla. 257, 71 Sou. 329, and The Thompkins Corporation v. Miami Beach, et al., 135 Fla. 360, 185 Sou. 422. I-n the instant case, as in the Snyder case, supra, there was nothing for a stay order to operate upon. It also appears in this case that in the order of the chancellor denying the petition for rehearing the chancellor adjudicated th…
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Halberstadt v. Halberstadt, 72 So. 2d 810 (Fla. 1954)…nal decree. This is true says ap-pellee, because an order denying a petition for rehearing taken more than sixty days after entry of the final' decree does not bring up the merits of the final decree for review. Thomkin Corp. v. City of Miami Beach, 135 Fla. 360, 185 So. 422; Hollywood, Inc., v. Clark, 153 Fla. 501, 15 So. 2d 175; and Lauderdale By The Sea Development Co. v. Lauderdale Surf and Yacht Estates, 160 Fla. 929, 37 So. 2d 364, 10 A.L. R.2d 1072 are relied on to support this contention. The trial…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gasque v. Ball, 71 Fla. 257 (Fla. 1916)