S. L. T. WAREHOUSE COMPANY, A MISSOURI CORPORATION, APPELLANT,
v.
WILMOTT WEBB, INDIVIDUALLY ET AL., APPELLEES

Fla. 4th DCA | 1974-03-26
No. 73-593
WALDEN, CROSS and DOWNEY, JJ., concur.
294 So. 2d 712 Florida District Court of Appeal, Fourth District (1974) Positive Treatment
Cited by 6 cases
Topics
Appealability Of Interlocutory Orders Finality Of Orders

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Opinion of the Court
PER CURIAM.

Ordered that appellant’s Motion to set case for oral argument filed February 21, 1974 is hereby denied, and further,

Ordered sua sponte, that the above-styled case commenced by the filing of a Notice of Appeal on May 10, 1973, in the Circuit Court for Orange County, Florida, in Case No. 70-5707, is hereby dismissed because it is a non-appealable order. PER CURIAM.

Other

Appellant has filed a petition for rehearing directed to this court’s order dismissing this appeal which involves a plenary appeal from an order dismissing a third party defendant’s counterclaim with prejudice. The main suit and the third party complaint remain pending in the lower court.

Appellant relies upon Duncan v. Pullum, Fla.App. 1967, 198 So. 2d 658, and Leeward and Hart Aero. Corporation v. South Central Airlines, Fla.App. 1966, 184 So. 2d 454, as authority for the finality and ap-pealability of the order in question. These cases do hold such an order to be appealable.

However, this court held in Midstate Hauling Co. v. Liberty Mutual Ins. Co., Fla.App. 1966, 189 So. 2d 826, that such an order is not appealable, relying upon Bumby & Stimpson, Inc. v. Peninsular Utilities Corp., Fla.App. 1965, 179 So. 2d 414. The Pullum case emanated out of the Second District Court of Appeal, but was not followed by that court in Potts v. Hayden, Fla.App. 1971, 249 So. 2d 726, wherein it was held that an appeal would not lie from a final summary judgment on a counterclaim while the main claim between the parties was pending. Since the litigation between the parties is still pending in the trial court and the error vel non of the order in question can be reviewed on appeal from the final judgment, it appears to us the better rule is that laid down in Mid-state Hauling Co. v. Liberty Mutual Ins. Co., supra.

Accordingly, we adhere to our order dismissing this cause, and the petition for rehearing is denied.

WALDEN, CROSS and DOWNEY, JJ., concur.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • S. L. T. Warehouse Co. v. Wilmott Webb, 304 So. 2d 97 (Fla. 1974)
    …ROBERTS, Justice. This cause is before us on petition for writ of certiorari granted to review the decision of the District Court of Appeal, Fourth District, reported at 294 So. 2d 712 (Fla.App.4, 1974), which purportedly conflicts with Duncan v. Pullum, 198 So. 2d 658 (Fla.App.2, 1967), and Leeward and Hart Aeronautical Corp. v. South Central Airlines, Inc., et al., 184 So. 2d 454 (Fla.App.1, 1966). We have jurisdiction pursuant…
  • Taussig v. Ins. Co. OF N. Am., 301 So. 2d 21 (Fla. 2d DCA 1974)
    …ognizable at law, so the possibility of treating this appeal as interlocutory is not open for consideration. . Bumby & Stimpson, Inc. v. Peninsula Util. Corp., Fla.App.3d, 1965, 179 So. 2d 414. . S. L. T. Warehouse Co. v. Webb, Fla.App. 4th, 1974, 294 So. 2d 712; Midstate Hauling Co. v. Liberty Mutual Ins. Co., Fla.App. 4th, 1966, 189 So. 2d 826. . Fla.App.2d 1971, 249 So. 2d 726. . Fla.App.2d 1964, 167 So. 2d 332. . Fla.App.2d 1973, 287 So. 2d 739. . Fla.App.2d 1967, 198 So. 2d 658. . See generally th…
  • Hawthorne v. Isom Ross, 413 So. 2d 466 (Fla. 4th DCA 1982)
    …Ins. Co. v. Collier, 405 So. 2d 311 (Fla. 4th DCA 1981). However, in this instance, there is an existing counterclaim and the cause has not been finalized. Accordingly, we dismiss the appeal upon the authority of S.L.T. Warehouse Company v. Webb, 294 So. 2d 712, 713 (Fla. 4th DCA 1974). However, as we did in the Webb case, we stress that this dismissal is without prejudice to review the entire matter upon entry of a final judgment. DISMISSED. LETTS, C. J., and DOWNEY and WALDEN, JJ., concur.…

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