Moore v. Johnson

Supreme Court of Florida

Moore v. Johnson

18 So. 2d 786, 154 Fla. 756, 1944 Fla. LEXIS 811

DecidedJuly 25, 1944

StatusPublished

This text of 18 So. 2d 786 (Moore v. Johnson) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Moore v. Johnson, 18 So. 2d 786, 154 Fla. 756, 1944 Fla. LEXIS 811 (Fla. 1944).

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Opinion

SEBRING, J.:

On December 3, 1943, the court below made an order denying defendants’ motion to dismiss plaintiff’s bill of complaint and ordered the defendants to answer. After answer filed, the plaintiff filed motion to strike certain portions thereof. On May 15, 1944, the trial court entered an order granting the motion to strike.

On June 7,1944, the defendants entered an appeal from the interlocutory orders of December 3, 1943, and May 15, 1944, respectively. Subsequently, on July 17, 1944, the defendants filed their petition in this court, seeking to review by interlocutory certiorari the same adverse orders from which the appeal has been attempted. The cause is now before us on motion to dismiss the appeal, and the petition for certiorari.

' As grounds for dismissing the appeal the movant contends that (1) appeal is not the proper method of invoking appellate review of interlocutory decree; (2) assuming, for the sake of argument, that it is the proper method, the order of December 3, 1943, may not now be reviewed because the appeal comes more than sixty days after the entry of the order appealed from. As ground for dismissing the petition for certiorari it is contended that more than sixty days has *757 elapsed since the entry and recordation of both orders sought to be reviewed; hence the petition for certiorari comes too late.

Interlocutory orders in chancery proceedings may not be reviewed by appeal prior to final decree. The proper method of review of interlocutory orders is by certiorari, under Supreme Court Rule 34, effective April 1, 1942. See Sirman v. Conklin, (Fla.) 17 So. (2nd) 298.

The record discloses that the petition for rule certiorari was not filed in this Court until after July 17, 1944. This was a date more than seven months after the recordation of the order of December 3, 1943, and more than sixty days after recordation of the order of May 15, 1944. The petition was filed too late. Sirman v. Conklin, supra; Sec. 67.03 Florida Statutes, 1941; Supreme Court Rule 34.

The motion to dismiss both the appeal and the petition for certiorari must be granted.

It is so ordered.

BUFORD, C. J., BROWN and THOMAS, JJ., concur.

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SEBRING, J.:

On December 3, 1943, the court below made an order denying defendants’ motion to dismiss plaintiff’s bill of complaint and ordered the defendants to answer. After answer filed, the plaintiff filed motion to strike certain portions thereof. On May 15, 1944, the trial court entered an order granting the motion to strike.

On June 7,1944, the defendants entered an appeal from the interlocutory orders of December 3, 1943, and May 15, 1944, respectively. Subsequently, on July 17, 1944, the defendants filed their petition in this court, seeking to review by interlocutory certiorari the same adverse orders from which the appeal has been attempted. The cause is now before us on motion to dismiss the appeal, and the petition for certiorari.

' As grounds for dismissing the appeal the movant contends that (1) appeal is not the proper method of invoking appellate review of interlocutory decree; (2) assuming, for the sake of argument, that it is the proper method, the order of December 3, 1943, may not now be reviewed because the appeal comes more than sixty days after the entry of the order appealed from. As ground for dismissing the petition for certiorari it is contended that more than sixty days has *757 elapsed since the entry and recordation of both orders sought to be reviewed; hence the petition for certiorari comes too late.

Interlocutory orders in chancery proceedings may not be reviewed by appeal prior to final decree. The proper method of review of interlocutory orders is by certiorari, under Supreme Court Rule 34, effective April 1, 1942. See Sirman v. Conklin, (Fla.) 17 So. (2nd) 298.

The record discloses that the petition for rule certiorari was not filed in this Court until after July 17, 1944. This was a date more than seven months after the recordation of the order of December 3, 1943, and more than sixty days after recordation of the order of May 15, 1944. The petition was filed too late. Sirman v. Conklin, supra; Sec. 67.03 Florida Statutes, 1941; Supreme Court Rule 34.

The motion to dismiss both the appeal and the petition for certiorari must be granted.

It is so ordered.

BUFORD, C. J., BROWN and THOMAS, JJ., concur.

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18 So. 2d 786, 154 Fla. 756, 1944 Fla. LEXIS 811, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-johnson-fla-1944.

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