IN RE THE ESTATE OF MARGARET J. CRISSEY, DECEASED
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The Fourth District Court of Appeal dismissed an appeal for lack of jurisdiction. The appellant filed a notice of appeal more than 30 days after the trial court's order dismissing her petition for revocation of will, and the filing of a motion for rehearing did not toll the appeal deadline.
The court lacks jurisdiction to hear the appeal because the notice of appeal was filed more than 30 days after the June 28, 1972 order, and the filing of a motion for rehearing did not toll the time for taking the appeal.
[1] A petition for rehearing or motion for new trial in probate or guardianship proceedings does not toll the time for taking an appeal.
[2] A notice of appeal filed more than 30 days after an order dismissing a petition is untimely and does not vest jurisdiction in the appellate court.
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Join FLexlaw to unlock all legal intelligence“the filing of the petition or motion mill not toll the time for taking an appeal”
Establishes the core principle that a motion for rehearing does not extend the deadline for filing a notice of appeal
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Join FLexlaw to unlock all legal intelligenceThe County Judge's Court entered an order on June 28, 1972, dismissing appellant's amended petition for revocation of will. The appellant filed a moti…
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PER CURIAM.
Upon further consideration of the record in this cause we are of the opinion that this court lacks jurisdiction to consider this appeal. The notice of appeal which was filed on July 31, 1972, seeks to review an order of the County Judge’s Court entered on June 28, 1972, dismissing appellant’s amended petition for revocation of will and an order of July 19, 1972, dismissing appellant’s motion for rehearing. The following comment appearing in the Florida Bar Practice Manual No. 8, Florida Probate Practice, Section 18.9, p. 777, aptly sets forth the basis for this court’s determination that it lacks jurisdiction:
“Neither the Florida probate law nor the Florida guardianship law nor the Rules of Probate and Guardianship Procedure authorize the filing of a petition for rehearing or motion for new trial. The filing of those pleadings is common practice and in a proper case can be granted on authority of State ex rel. Booth v. Byington, 168 So. 2d 164 (1st D.C.A.Fla.1964) aff’d [Fla.] 178 So. 2d 1. However, the filing of the petition or motion mill not toll the time for taking an appeal. Counne v. Saffan, 87 So. 2d 586 (Fla.1956). Compare In re Lee’s Estate, 90 So. 2d 290 (Fla.1956). The party who files the petition or motion therefore should obtain a ruling on it before the appeal period expires. If no ruling is obtained within the time for the taking of an appeal, a party should abandon the petition, file a notice of appeal and pursue the appeal. . . .” (Emphasis added.)
See also In re Estate of Armistead, Fla.App.1970, 240 So. 2d 830.
Inasmuch as the petition for rehearing did not have the effect of tolling the time for the taking of the instant appeal, the filing of the notice of appeal more than 30 days after the order of June 28, 1972 was untimely and could not vest jurisdiction in this court.
Appeal dismissed.
OWEN, C. J., and WALDEN and MA-GER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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In re Est. of George E. Beeman, 391 So. 2d 276 (Fla. 4th DCA 1980)…for rehearing,1 such a motion is a nullity which, if filed, will not toll the time for filing an appeal. In re Malone, 365 So. 2d 1059 (Fla. 2d DCA 1978); Val Bostwlck v. Estate of Cowan, 326 So. 2d 454 (Fla. 1st DCA 1976); In re Estate of Crissey, 286 So. 2d 585 (Fla. 4th DCA 1973). In the case at bar, appellee filed a petition for rehearing on February 28, 1978, twelve days after the February 16th order. The court entered its amended order on March 16,1978, twenty-eight days after the original order. The…
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In re The Est. OF Eileen Ellis Murphy v. Eve E. Murphy, 573 So. 2d 424 (Fla. 3d DCA 1991)…In re Estate of Beeman, 391 So. 2d 276, 279 & n. 1 (Fla. 4th DCA 1980). A timely motion under Rule 5.020(d) suspends rendition of the order to which it is directed. Fla.R.App.P. 9.020(g). The authority relied on by appellee, In re Estate of Crissey, 286 So. 2d 585 (Fla. 4th DCA 1973), was based entirely on the fact that the pre-1981 probate and guardianship rules did not authorize motions for rehearing. In view of the 1981 amendment, Cris-sey is no longer good law. Motion to dismiss denied.…
Authorities Cited
- State of Fla. ex rel. Charles E. Booth under the Last Will & Testament of Florence I. Herlan v. Honorable John S. Byington, 168 So. 2d 164 (Fla. 1st DCA 1964)
- Counne v. Saffan, 87 So. 2d 586 (Fla. 1956)
- State of Fla. ex rel. v. Honorable John S. Byington, 178 So. 2d 1 (Fla. 1965)
- In re Est. of Francis R. Armistead, 240 So. 2d 830 (Fla. 1st DCA 1970)
- In re Est. of Minola M. LEE, 90 So. 2d 290 (Fla. 1956)