ALEXANDER CUNNINGHAM
v.
JAMES F. TUCKER AND OTHERS
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The Florida Supreme Court addresses a procedural motion to dismiss an appeal from a Circuit Court order granting an injunction and appointing a receiver. The Court holds that the order is appealable and that proper notice and undertaking were filed, denying the motion to dismiss.
The Court holds that such orders are appealable both under the provisions of section 3 of the 1853 act relating to writs of error and appeals and under section 10 of the Code (as amended in 1871), and that the appeal was properly perfected with due notice and an executed undertaking filed timely.
“The return discloses due notice of appeal with the admission of service by respondent's attorney, and by the clerk indorsed on it, and also an undertaking duly executed and approved, all which were filed in the clerk's office within two days after the signing of the order appealed from.”
Establishes that proper notice and undertaking were filed within the required time period, defeating the respondent's procedural objections.
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Join FLexlaw to unlock all legal intelligenceThe Circuit Court, Fourth Circuit, granted an injunction and appointed a receiver. The respondent moved to dismiss the appeal, claiming that no notice…
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delivered the opinion of the court.
This is an appeal from an order of the Circuit Court, Fourth Circuit, granting an injunction and appointing a receiver.
The respondent now moves to dismiss the appeal, on the grounds that no notice of appeal had been served or security given as required by law, and that the order is not one from which an appeal can be taken.
The first grounds, the absence of evidence of service of notice of appeal, and the failure to give the necessary un*250dertaking, are evidently the result of misapprehension. The return discloses due notice of appeal with the admission of service by respondent’s attorney, and by the clerk indorsed on it, and also an undertaking duly executed and approved, all which were filed in the clerk’s office within two days after the signing of the order appealed from.
As to the other ground, that the order is not one from which an appeal may be taken, it is sufficient to remark that in our judgment such orders were the subject of appeal under the provisions of section 3 of an act relating to writs of error and appeals, approved January 7, 1853. (Laws of 1852 -’3, p. 100,) which act has not been replealed, as we have heretofore had occasion to hold. (Schultz vs. Pacific Insurance Co., 14 Fla., 73.) Nor are we satisfied that such orders are not appealable under the provisions of see. 10 of the Code, but if any doubt existed in that respect, it was removed by an act amending section 202 of the Code, approved Jan. 27, 1871, which says that “ Appeals may be taken from all such interlocutory as well as final orders and judgments in like cases, as appeals could be taken before the passage of the act to which this is an amendment.” (See sub. 2 of section 7.)
The motion to dismiss the appeal is denied.