ESTHER COUNNE AND NESSEM COUNNE, APPELLANTS,
v.
SIMON SAFFAN, DORRA SAFFAN, SARAH MORDOH, MALLAH MORDOH, DOING BUSINESS AS S & M APARTMENTS, APPELLEES
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The Florida Supreme Court dismissed an appeal from a summary judgment for lack of jurisdiction because the notice of appeal was filed more than 60 days after the judgment was recorded. The court held that a petition for rehearing does not toll the appeal period, and the jurisdictional filing deadline for notice of appeal is not subject to extension even with party consent.
The court lacks jurisdiction to hear the appeal because the notice of appeal was filed too late. Filing a petition for rehearing does not toll the appeal period, and the notice of appeal must be filed within the time prescribed by the rules. The filing of the notice of appeal with the Clerk is jurisdictional and cannot be waived even with party consent.
“the filing of the notice of appeal is jurisdictional and this court is without power to exercise its jurisdiction in the absence of the filing of such a notice within the time and manner prescribed by our rules”
Establishes that timely filing of notice of appeal is a jurisdictional requirement that cannot be waived
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Join FLexlaw to unlock all legal intelligenceOn May 4, 1955, a trial judge entered summary judgment in favor of defendants in a negligence action brought by the Counnes for injuries allegedly cau…
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THORNAL, Justice.
Appellants Counne, who were plaintiffs below, seek reversal of a summary judgment in favor of the defendants below in an action for damages based on alleged negligence.
The question presented by the appeal is whether the record reveals a genuine issue on material facts. However, for the reasons hereinafter stated, we cannot proceed to a consideration of the merits of the cause.
On May 4, 1955, the trial judge entered a summary judgment in favor of the defendants in an action for damages arising out of the alleged negligence of the defendants resulting in the alleged injury of plain tiff Esther Counne. Summary judgment was recorded May 5, 1955.
The appellant-plaintiffs filed a “petition for rehearing” which was denied by an order recorded June 7, 1955. On July 6, 1955, notice of appeal from the summary judgment and from the order denying petition for rehearing was filed in the office of the Clerk of the Circuit Court. The appeal assigns as error the entry of the summary judgment and the order denying petition for rehearing.
In Weisburg v. Perl, Fla.1954, 73 So. 2d 56, we held that there is no provision in our rules or statutes for attacking a summary judgment in a law action by petition for rehearing or by a motion for a new-trial. It was further held that when such a petition or motion is filed in the trial court, it does not toll the running of the appeal period against the summary judgment. If an appeal is instituted it must be from the summary final judgment itself.
Under Supreme Court Rule 12(3), 31 F.S.A., an appeal “shall be deemed to have been commenced when the notice of appeal is filed with the clerk of the court whose order, judgment or decree is appealed from.” It is this filing of the notice of appeal that gives this court jurisdiction of the subject matter and the parties to the appeal. Supreme Court Rule 12(5). The filing of the notice of appeal is jurisdictional and this court is without power to exercise its jurisdiction in the absence of the filing of such a notice within the time and manner prescribed by our rules.
A review of the record before us reveals that the summary judgment was recorded May 5, 1955. The notice of appeal was filed for record in the office of the Clerk July 6, 1955. Although a certificate of counsel recites that a copy of the notice was mailed to opposing counsel on July 3, 1955, it is the filing of the notice in the office of the Clerk of the trial court that bestows the jurisdiction on this court. The intervening filing of the so-called “petition for rehearing” had no effect whatever on the running of the appeal period from the date of the recording of the summary final judgment. It is therefore apparent from the record that the notice of appeal was filed too late to give this court jurisdiction. Under such circumstances we could not assume jurisdiction even with the consent of the parties, which is not here present. See Donin v. Goss, Fla.1954, 69 So. 2d 316.
For the reasons stated, the appeal is dismissed ex mero motu.
DREW, C. J., and TERRELL, and HOBSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (22 total)
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Wagner v. Bieley, 263 So. 2d 1 (Fla. 1972)…e Rules did not permit petitions for rehearing directed to summary judgments, the pendency of such petitions could not and did not operate to toll the time for filing notice of appeal. See Weisberg v. Perl, 73 So. 2d 56 (Fla.1954); Counne v. Saffan, 87 So. 2d 586 (Fla.1956); La Joie v. General Motors Acceptance Corporation, 108 So. 2d 497 (Fla.App.2d, 1959); Albert v. Carey, 120 So. 2d 189 (Fla.App.3rd, 1960); and Aurremma v. B-Thrifty Super Market, Inc., 127 So. 2d 682 (Fla.App.3rd, 1961).1 Lajoie v. Gener…
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Ramagli Realty Co. v. Craver, 121 So. 2d 648 (Fla. 1960)…d for naught with directions to enter an order dismissing the appeal for lack of jurisdiction.23 HOBSON, THORNAL and O’CON-NELL, JJ., concur. TERRELL, J., agrees to judgment. THOMAS, C. J., and ROBERTS, J., dissent. . Counne v. Saffan, Fla.1956, 87 So. 2d 586; Donin v. Goss, Fla.1954, 69 So. 2d 316 and State ex rel. Diamond Berk Insurance Agency v. Carroll, Fla.1958, 102 So. 2d 129. . Except those from which appeals may be taken direct to the Supreme or to a circuit court. . Art. V, Sec. 5(3), Florida…
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State of Fla. ex rel. Eugene W. Owens v. Honorable Tillman Pearson, 156 So. 2d 4 (Fla. 1963)…. . Rule 3.16, Florida Rules of Civil Procedure, 31 F.S.A. . Note 1, supra. . Fla., 81 So. 2d 591. . 59.08, F.S.A. Rule 3.2, F.A.R.1962 Revision. Cf. In re Wartman’s Estate, Fla., 1961, 128 So. 2d 600. . Note 11, supra. Counne v. Saffran, Fla., 87 So. 2d 586; Donin v. Goss, Fla., 69 So. 2d 316; Lee v. Bond-Howell Lumber Co., 123 Fla. 202, 166 So. 733. Cf. Thursby v. Stewart, 103 Fla. 990, 138 So. 742; Shannon v. Shannon, Fla.App., 136 So. 2d 253; Bancroft v. Allen, 138 Fla. 841, 190 So. 885. . State v.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Weisberg v. Perl et ux., 73 So. 2d 56 (Fla. 1954)
- Peek v. Fla. Comm'n on Offender Review (Fla. 1st DCA 2024)
- Donin v. Goss, 69 So. 2d 316 (Fla. 1954)