Mogul v. Fodiman

295 So. 2d 663, 1974 Fla. App. LEXIS 7123

• Court: District Court of Appeal of Florida
• Decided: June 7, 1974
• Docket: No. 74-634
• Status: Published

Opinion

OWEN, Chief Judge.

OPINION ON MOTION TO DISMISS APPEAL

Appellees have filed their motion to dismiss this interlocutory appeal on the grounds that the appeal was not filed within ten days after the entry of a stay order entered by the trial court pursuant to Rule 5.1, F.A.R., 32 F.S.A.

When an appeal to review an interlocutory order in a matter formerly cognizable in equity has been or is about to be taken to the appellate court, the lower court may, in its discretion grant a super-sedeas or stay upon appellant’s giving a good and sufficient bond conditioned as provided in Rule 5.1, F.A.R. One such condition is that the appeal be filed within ten days of the stay order. This is solely a condition to the efficacy of the stay order and does not reduce the thirty day period prescribed by Rule 4.2(b), F.A.R. within which the appeal must be taken in order to confer jurisdiction upon the appellate court. In this case the notice of appeal was filed within thirty days of the rendition of the order sought to be reviewed, and therefore the motion to dismiss is denied.

Notwithstanding this court’s jurisdiction of the appeal, the trial court retains jurisdiction, subject to review by the appellate court under Rule 5.10, F.A.R., to control the terms and conditions of the super-sedeas or stay order and to vacate or set aside such order whenever it is made to appear to such court that a condition of the order has not been met, such as is alleged to have occurred in this case.

Motion to dismiss denied.

CROSS, J., concurs. TROWBRIDGE, C. PFEIFFER, Associate Judge, dissents without opinion.