Midstate Hauling Company v. Liberty Mutual Insurance Company

189 So. 2d 826, 1966 Fla. App. LEXIS 4812

• Court: District Court of Appeal of Florida
• Decided: September 9, 1966
• Docket: 741
• Status: Published

Opinion

189 So.2d 826 (1966)

MIDSTATE HAULING COMPANY, Inc., Appellant,
v.
LIBERTY MUTUAL INSURANCE COMPANY, a Corporation, Appellee.

No. 741.

District Court of Appeal of Florida. Fourth District.

September 9, 1966.

Paul A. Saad and Daniel R. Walbolt, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellant.

Howard J. Clifton, Orlando, for appellee.

PER CURIAM.

Midstate Hauling Company attempts to appeal an interlocutory order at common law dismissing its counterclaim and striking certain of its defenses.

Florida Appellate Rule 4.2, 31 F.S.A., provides for interlocutory appeals in common law proceedings only upon matters affecting venue or jurisdiction as authorized by Article V, Section 5(3), of the Constitution of Florida, F.S.A. The issues of venue or jurisdiction are not raised; therefore, the appeal is clearly not an interlocutory appeal.

We then consider the finality of the order appealed to determine if the matter may be considered as a full appeal under F.A.R. 3.2. It has been held that the dismissal of a complaint, although final in form, which left pending a counterclaim was not appealable. Bumby & Stimpson, Inc. v. Peninsular Utilities Corporation, Fla.App. 1965, 179 So.2d 414. The same reasoning would apply to an order dismissing a counterclaim.

Accordingly, the appeal not being interlocutory and the court not having completed its judicial labors in the cause of action between the parties, such is not an appeal from a final judgment and the cause must be dismissed. The matters determined by said order can properly be raised on an appeal from a final judgment.

Dismissed sua sponte.

ANDREWS, Acting C.J., WALDEN, J., and GONZALEZ, JOSE A., Jr., Associate Judge, concur.