Bursten v. Cooper

127 So. 2d 134

• Court: District Court of Appeal of Florida
• Decided: February 23, 1961
• Docket: No. 60-364
• Status: Published

Opinion

PER CURIAM.

This appeal was from an order denying defendant’s motion to set aside a default and denying motion to set aside the final judgment entered upon ex parte proceedings subsequent to the default. There being no appeal from the final judgment, the order denying motion to set aside the default and default judgment was not reviewable upon an appeal. See Ramagli Realty v. Craver, Fla.1960, 121 So.2d 648. In addition, the order appealed does not come within the class of orders which may be the subject of an interlocutory appeal in a common law action.¹

We have, nevertheless, considered the merits of defendant’s contention that the trial judge abused his discretion under which defaults may be set aside in proper cases.² Upon authority of section 59.45, Fla.Stat., F.S.A., we have considered the notice of appeal as a petition for writ of certiorari, because the notice was promptly filed and no reasonable objection appears to the consideration. Inasmuch as no abuse of discretion has been made to appear, the petition is denied.

It is so ordered.

PEARSON, Acting C. J., CARROLL, CHAS., J., and MILLEDGE, STANLEY, Associate Judge, concur.

1 . Rule 4.2, subd. a, Florida Appellate Rules, 31 F.S.A.

2 . Edwards v. Knight, 104 Fla. 16, 139 So. 582, 143 So. 441.