WILLIAM S. BURKHART
v.
LEONORA FORNEY BURKHART
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The Florida Supreme Court denied a motion to dismiss an appeal in a domestic relations case, holding that while Rule 34 prescribes orderly procedures for reviewing interlocutory orders, it does not deprive litigants of the right to have such orders reviewed when the court has already assumed jurisdiction at the appellee's request.
The motion to dismiss was denied. The Court held that Rule 34 does not affect the jurisdiction of the Court to dispose of the merits of questions based on interlocutory orders presented by direct appeal, and that the rule was designed to facilitate orderly disposition of such reviews, not to deprive litigants of review rights.
“Rule 34, supra, does not affect the jurisdiction of this Court to dispose of the merits of a question based on an interlocutory order when such question is presented by direct appeal instead of being presented as is required by Rule 34.”
Establishes that Rule 34 does not divest the Court of jurisdiction over interlocutory orders presented by direct appeal
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Join FLexlaw to unlock all legal intelligenceWilliam S. Burkhart appealed from an interlocutory order regarding alimony pendente lite and solicitor's fees in a case against Leonora Forney Burkhar…
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This cause is before us on motion to dismiss the appeal principally on the ground that the ap*451peal was taken under the provisions of Sec! 4961 C. G. L. and in violation of Rule' 34 of this Court which became effective May 1, 1939.
The motion to dismiss was not timely made but such motion was presented here after this Court had assumed jurisdiction by making an order of reference to the Honorable Arthur Gomez, Judge of the Eleventh Judicial Circuit of Florida, to take testimony and report in connection with a motion previously made to this Court to order the payment of alimony pendente lite and solicitor’s fees for representing the appellee here, which order was made on' the application of the appellee.
It, therefore, appears that appellee had invoked the jurisdiction of this Court under the- appeal entered.
Rule 34, supra, does not-affect the jurisdiction of this Court to dispose'of the merits of- a questipn based on an interlocutory order when such question' is presented by direct appeal instead of being presentéd as is required by Rule 34.
Rule 34 was designed to facilitate the disposition of the review of interlocutory orders and not for the purpose of depriving litigants of the right to have such orders reviewed.
The rule does not abrogate the ’provisions of Sec. 4961 C. G. L., but prescribes the orderly method by which the right to review such orders may be accomplished.
If the motion' of appellee to dismiss had been timely made and at a time before the juidsdiction of this Court had been exercised at the bequest of the appellee, we would have been justified in granting the motion under Rule 34, but under the peculiar factual conditions as above outlined, we feel that we should continue the exercise of the jurisdiction which we have heretofore assumed and deny the' motion.
It is so ordered.-
*452Motion denied.
Terrell, C. J., and Buford arid Thomas, J. J., concur.
Whitfield, J., concurs in opinion and judgment.
Justices Brown and Chapman not participating as authorizfed by Section 4687, Compiled General Laws of 1927 and'Rule 21-A of the Rules of this Court.
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Princess Vladimir Eristavitchitcherine v. Miami Beach Fed. Sav. & Loan Ass'n, 154 Fla. 100 (Fla. 1944)…s are by the statute made a matter of right, and that only the method of the exercise of that right is changed by Rule 34, which also gives a method for reviewing orders and decrees made subsequent to the main final decree. See Burkhart v. Burkhart, 141 Fla. 450, 193 So. 434; Greater Miami Development Corp. v. Pender, 142 Fla. 390, 194 So. 867; Hollywood Inc. v. Clark, 15 So. (2) 171, 153 Fla. 501. For the reasons above pointed out, the appeal from the final decree must be and is hereby dismissed; and as t…
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Tallentire v. Leonora Forney Burkhart, 153 Fla. 278 (Fla. 1943)…SEBRING, J.: Thomas L. Tallentire and William S. Burkhart Realty Corporation are here on petition for certiorari. Certain phases of the suit have been before this court on previous occasions. See Burkhart v. Burkhart, 141 Fla. 450, 193 So. 434; 141 Fla. 724, 193 So. 834; 144 Fla. 168, 197 So. 730; 144 Fla. 176, 198 So. 21; 145 Fla. 547, 200 So. 694; Burkhart v. Circuit Court, Eleventh Judicial Circuit, et al., 146 Fla. 457, 1 So. (2nd) 872; Tallentire v. Burkhart, 150 Fla. 13…
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Fredericka Lucian v. THE S. Ohio Sav. Bank & Tr. Co., 156 Fla. 370 (Fla. 1945)…to the divorce part of it, because, as this record shows, he sued for and secured a divorce in Ohio. The answer also alleges that pending the appeal of W. S. Burkhart in the case of Burkhart v. Burkhart, and appellee’s motion to dismiss the appeal, 141 Fla. 450, 193 So. 434, 141 Fla. 724, 193 So. 834; 144 Fla. 176, 197 So. 730, 198 So. 21, (which last appeal was taken from the chancellor’s order of September 15, 1939, holding that Burkhart’s special appearance amounted to a general appearance) counsel for…