ZOE D. DUBEMAINE, JOINED BY HER HUSBAND AND NEXT FRIEND, EUGENE A. DUDEMAINE,
v.
ROY SHAW AND MARY SHAW, HIS WIFE, J. W. MOSTELLER, AMERICAN OIL COMPANY, A CORPORATION, CECIL MARTIN, HARRY WHALON, FRED STRICKLAND AND LILLIAN E. STRICKLAND, HIS WIFE, FRED G. TEGDER, S. E. HUTCHINS
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The court held that a petition for interlocutory certiorari is not the proper remedy to review a final order dismissing a bill of complaint without leave to amend.
Petitioner sought review of a lower court order dismissing her amended bill of complaint via interlocutory certiorari. The lower court granted motions…
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The petitioner seeks by petition for interlocutory certiorari to review an order or decree of the lower court dismissing an amended bill of complaint. The point is made by the respondents that the petitioner has mistaken her remedy, in that she should have come here by appeal instead of by petition for certiorari.
A motion to dismiss an amended bill of complaint on the ground that there is no equity in the bill seeks to finally terminate the suit by dismissing the bill. If granted, the order on the motion is final, unless the chancellor enters the order conditioned upon an amendment of the bill to state a cause in equity. Lykes Bros. Florida Co. v. King, et al., 125 Fla. 101, 169 So. 595.
In the present case motions to dismiss the amended bill of complaint were filed by all parties defendant against whom any relief was sought. On argument, the several motions to dismiss were granted and an order thereon was entered. No leave was given the plaintiff to amend the amended bill of complaint, nor does it appear from the record that permission to amend was requested. The decree, therefore, was a final decree which was reviewable only by appeal and not by interlocutory certiorari. Saffran v. Adler, 152 Fla. 405, 12 So. (2nd) 124.
The petition for interlocutory certiorari should be denied.
It is so ordered.
BUFORD, C. J., BROWN and THOMAS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Marvell Womack v. Burton F. Goldberg and Joyce S. Goldberg, 117 So. 2d 758 (Fla. 3d DCA 1960)…nd Electric Co., FIa.1952, 58 So. 2d 153; Anderson v. Carlton, 156 Fla. 170, 22 So. 2d 874. See also Barns, Appeal and Error, 12 U.Miami L.Rev. 541, 551-2 (1958). But see Lykes Bros. Florida Co. v. King, 125 Fla. 101, 169 So. 595; Dudemaine v. Shaw, 153 Fla. 16, 13 So. 2d 444; Schwenck v. Jacobs, 160 Fla. 33, 33 So. 2d 592. . Other federal eases which hold to the same effect are Jung v. K. & D. Mining Co., 356 U.S. 335, 78 S.Ct. 764, 2 L.Ed. 806; Cleary Brothers v. Christie Scow Corporation, 2 Cir., 1949,…
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Anderson v. T. Mabry Carlton and wife Septa Carlton, 156 Fla. 170 (Fla. 1945)…to dismiss the appeal on the ground that the order appealed from was not a final judgment, or order, disposing of the cause, but on the' contrary was an interlocutory order and hence reviewable only by certiorari. In the case of Dudemaine v. Shaw, 153 Fla. 16, 13 So. (2nd) 444, we held that where, as in that case, motion to dismiss the bill was granted, and no leave was given the plaintiff to amend, the order of dismissal was a final decree which could not be reviewed on certiorari. In the opinion of Mr.…
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Herreman v. Negus, 104 So. 2d 403 (Fla. 2d DCA 1958)…PER CURIAM. Appeal dismissed. Lykes Bros. Florida Co. v. King, 1936, 125 Fla. 101, 169 So. 595; Alderman v. Puritan Dairy, 1940, 145 Fla. 292, 199 So, 44; Dudemaine v. Shaw, 1943, 153 Fla. 16, 13 So. 2d 444; and Anderson v. Carlton, 1945, 156 Fla. 170, 22 So. 2d 874. KANNER, C. J., ALLEN, J., and FUS-SELL, CARROLL W., A. J., concur.…
Authorities Cited
- Nelly Saffran v. Adler, 152 Fla. 405 (Fla. 1943)
- Lykes Bros. Fla. Co. v. Ziba Glenn King and Helen G. King, 125 Fla. 101 (Fla. 1936)