Burkhart v. Burkhart

193 So. 434, 141 Fla. 450, 1940 Fla. LEXIS 801

• Court: Supreme Court of Florida
• Decided: January 26, 1940
• Status: Published

Opinion

Per Curiam.

This cause is before us on motion to dismiss the appeal principally on the ground that the ap peal was taken under the provisions of Sec! 4961 C. G. L. and in violation of Rule' 34 of this Court which became effective May 1, 1939.

The motion to dismiss was not timely made but such motion was presented here after this Court had assumed jurisdiction by making an order of reference to the Honorable Arthur Gomez, Judge of the Eleventh Judicial Circuit of Florida, to take testimony and report in connection with a motion previously made to this Court to order the payment of alimony pendente lite and solicitor’s fees for representing the appellee here, which order was made on' the application of the appellee.

It, therefore, appears that appellee had invoked the jurisdiction of this Court under the- appeal entered.

Rule 34, supra, does not-affect the jurisdiction of this Court to dispose'of the merits of- a questipn based on an interlocutory order when such question' is presented by direct appeal instead of being presentéd as is required by Rule 34.

Rule 34 was designed to facilitate the disposition of the review of interlocutory orders and not for the purpose of depriving litigants of the right to have such orders reviewed.

The rule does not abrogate the ’provisions of Sec. 4961 C. G. L., but prescribes the orderly method by which the right to review such orders may be accomplished.

If the motion' of appellee to dismiss had been timely made and at a time before the juidsdiction of this Court had been exercised at the bequest of the appellee, we would have been justified in granting the motion under Rule 34, but under the peculiar factual conditions as above outlined, we feel that we should continue the exercise of the jurisdiction which we have heretofore assumed and deny the' motion.

It is so ordered.-

Motion denied.

Terrell, C. J., and Buford arid Thomas, J. J., concur. Whitfield, J., concurs in opinion and judgment. Justices Brown and Chapman not participating as authorizfed by Section 4687, Compiled General Laws of 1927 and'Rule 21-A of the Rules of this Court.