G. S. SIRMAN, DOING BUSINESS AS TROPICAL AWNING SHUTTER COMPANY, NOT INC., R. S. EVANS, LITTLE RIVER BANK AND TRUST COMPANY, A CORPORATION, AND FLORIDA TRUST COMPANY AT MIAMI, A CORPORATION,
v.
S. A. CONKLIN
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The Florida Supreme Court dismissed a petition for rule certiorari seeking review of an interlocutory order denying a motion to dismiss, holding that the petition was filed beyond the 60-day statutory period required for appellate review and that appellate jurisdiction is statutory and jurisdictional.
The petition for certiorari is dismissed because it was filed beyond the 60-day statutory period required by Sections 59.08 and 67.03 of the Florida Statutes. The right to appellate review is statutory and jurisdictional, and the time within which appellate review may be invoked cannot be waived.
“the time within which appellate review cari be invoked is statutory and jurisdictional, and cannot be waived by the appellees or respondents”
Establishes that the 60-day deadline for invoking appellate review is mandatory and jurisdictional
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Join FLexlaw to unlock all legal intelligenceOn December 14, 1943, the trial court denied defendants' motion to dismiss plaintiff's amended bill of complaint. Defendants initially attempted to ap…
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On December 14, 1943, the Court made an order denying defendants’ motion to dismiss plaintiff’s amended bill of complaint, and to strike parts thereof; which order was recorded December 16, 1943.
To this order defendants filed notice of appeal on January 4, 1944, which was recorded January 5, 1944, and an order for supersedeas until the appeal was determined by the Supreme Court was also entered. (Assignments of error and directions to the clerk were not filed until after the ten days provided by Rule 11, nor was the transcript of record filed here within the time provided by Rule 12.)
Appeal was not the proper method of invoking appellate review of the interlocutory order of December 16, 1943. Supreme Court Rule 34, effective April 1, 1942, provides for the review of interlocutory orders and decrees by certiorari in the manner provided by the rules relating to constitutional writs of certiorari, which are Rules 27 and 28. Appeal is, however, still the proper method of invoking appellate review of final decrees. Certiorari under Rule 34 is not to be confused with the common law writ of certiorari which this Court is authorized to grant by Section 5 of Article V of the Constitution, although the manner or method for invoking appellate review of interlocutory orders under Rule 34 is the same as that provided in Rules 27 and 28 relating to applications for certiorari and all the common law writs which this Court has the power under the Constitution to grant. See Rules 34, 27 and 28; also Saffran v. Adler, 12 So. (2nd) 124, 152 Fla. 405.
The defendants below must have realized that fact that they had adopted the wrong method of invoking review by this Court of the interlocutory order recorded on December 16, 1943, because the attempted appeal was apparently abandoned and on February 29, 1944, they filed in this Court a *306petition for certiorari under our Court Rules 34 and 27. Of course common law certiorari did not lie, as the order attacked was not a final adjudication, but an interlocutory order, and another adequate remedy for appellate review under Rule 34 was available.
But this petition for rule-certiorari was not filed here until February 29, 1944, to review an order granted by the lower Court on December 16, 1943, which was beyond the sixty day period allowed by the statutes. See Sections 59.08 and 67.03, Fla. Stats., 1941.
We have held that the right to appellate review by this Court is granted by the statute, while Rule 34 relates only to the manner or method of its exercise (Greater Miami Development Corp. v. Pender, 142 Fla. 390, 194 So. 867, but the time within which appellate review cari be invoked is statutory and jurisdictional,. and cannot be waived by the appellees or respondents. Reed v. Cromer, 86 Fla. 390, 98 So. 324. Of course, all interlocutory rulings and orders in chancery are reviewable on an appeal duly taken from a final decree. See Section 67.02 F.S. 1941.
It follows that the petition for certiorari must be and is hereby
Dismissed.
BUFORD, C. J., CHAPMAN and ADAMS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Kent v. Marvin, 59 So.2d 791 (Fla. 1952)…ention the cases of Lauderdale-by-the-Sea Development Co. v. Lauderdale S. & Y. Estates, 160 Fla. 929, 37 So. 2d 364, 10 A.L.R.2d 1072; Dustin v. Latzko, 155 Fla. 824, 21 So. 2d 904; Cates v. Heffernan, 154 Fla. 422, 18 So. 2d 11; Sirman v. Conklin, 154 Fla. 304, 17 So. 2d 298, and on Petition for Rehearing our attention is called to the case of Wolf v. Cleveland Electric Co., Inc., Fla., 58 So. 2d 153. We denied the motion to dismiss without opinion. This is a common-law action and a motion for new trial…
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Hyman Schneider v. Manheimer, 170 So. 2d 75 (Fla. 3d DCA 1964)…ie to review the judgment of an inferior court if there is any other adequate remedy. Lewis v. Lewis, Fla.1955, 78 So. 2d 711; Huie v. Lewis, Fla. 1954, 71 So. 2d 498; Pennekamp v. Circuit Court, 155 Fla. 589, 21 So. 2d 41 (1945); Sirman v. Conklin, 154 Fla. 304, 17 So. 2d 298 (1944); Saffran v. Adler, 152 Fla. 405, 12 So. 2d 124 (1943); Kilgore v. Bird, 149 Fla. 570, 6 So. 2d 541 (1942). It is petitioner’s position that he has no other adequate remedy because the order sought to be reviewed is an interloc…
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Russom v. State, 109 So. 2d 30 (Fla. 1959)…or filed within sixty days from and after the entry of the order, decision, judgment or decree, appealed from.” . Reed v. Cromer, 1923, 86 Fla. 390, 98 So. 329; Palmer v. Gulf Fertilizer Co., 1937, 127 Fla. 61, 172 So. 488; Sirman v. Conklin, 1944, 154 Fla. 304, 17 So. 2d 298. . Florida Appellate Rule 1.3. . Article V, Section 3, Florida Constitution, F.S.A. . Sikes v. Dade Lumber Co., 1929, 98 Fla. 451, 123 So. 918, 919.…
Authorities Cited
- Nelly Saffran v. Adler, 152 Fla. 405 (Fla. 1943)
- Greater Miami Dev. Corp. v. Pender, 142 Fla. 390 (Fla. 1940)
- Harrison Reed and Catherine Harriet Reed v. Mendel Cromer, 86 Fla. 390 (Fla. 1923)