French v. Wellman

413 So. 2d 143, 1982 Fla. App. LEXIS 28708

• Court: District Court of Appeal of Florida
• Decided: April 28, 1982
• Docket: No. 81-476
• Status: Published

Opinion

COWART, Judge.

This is an appeal from an interlocutory order granting a motion to set aside a default.

Appellees initially filed a motion to dismiss this appeal, arguing this court did not have jurisdiction, citing Yates v. Roller Skating Rinks, Inc., 379 So.2d 1333 (Fla. 5th DCA 1980). Based on appellants’ response, appellees conceded and withdrew the motion to dismiss. Appellees erred, not in filing their motion to dismiss, but in withdrawing it. In Yates, we held that an order granting¹ a motion to set aside a default, as distinguished from an order setting aside a judgment entered on a default (sometimes called a default judgment),² was a non-final order not reviewable by appeal or common law certiorari. Since Yates is indistinguishable from this appeal, this appeal is

DISMISSED.

DAUKSCH, C. J., and ORFINGER, J., concur.

1 . An order denying a motion to vacate a default has been held appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(c)(iv). See, e.g., Silva v. Pedro Realty, Inc., 411 So.2d 872 (Fla.1982); Doctor's Hospital of Hollywood, Inc. v. Madison, 411 So.2d 190 (Fla., 1982).

2 . An order granting a motion to set aside a default judgment pursuant to Florida Rule of Civil Procedure 1.540(b) is a reviewable non-final order under Florida Rule of Appellate Procedure 9.130(a)(4) or (5). See, e.g., Diner’s Club, Inc. v. Brachvogel, 370 So.2d 443 (Fla. 3d DCA 1979), cert. dismissed 395 So.2d 1156 (Fla.1980).