Baker v. Colley, 508
| Decision Date | 16 July 1958 |
| Docket Number | No. 508,508 |
| Citation | 104 So.2d 473 |
| Parties | Irene Emma BAKER, Appellant, v. Sherman L. COLLEY and Mildred L. Colley, Appellees. |
| Court | Florida District Court of Appeals |
K. K. McRoyan, Thomas H. Stokes, Sarasota, for appellant.
Macfarlane, Ferguson, Allison & Kelly, Charles F. Clark, Tampa, for appellee.
This is an appeal from an order granting a motion to dismiss and a motion to strike the complaint in a negligence action. Irene Emma Baker sued Sherman L. Colley and Mildred L. Colley, husband and wife, for injuries received while an invitee on defendants' premises. Such injuries resulted when a cat owned and kept by defendants became excited in the presence of plaintiff's small dog and jumped against plaintiff, knocking her down. Plaintiff appeals.
We are precluded in this case from deciding the relative merits of pet dogs and pet cats by the form of the order entered by the trial court, which was as follows:
'Ordered, and Adjudged that said Motion to Dismiss and said Motion to Strike be, and the same are hereby granted.'
31 F.S.A.Florida Appellate Rule 3.2(b) provides:
'Appeals from final decisions, orders, judgments or decrees shall be commenced within 60 days from the rendition of the final decision, order, judgment or decree appealed from, unless some other period of time for taking an appeal is specifically provided by statute or these rules.'
The above order was not a final judgment, therefore the appellant could not take an appeal therefrom. Since this is a question of jurisdiction, the court must, exmero motu, dismiss the appeal in this case
In the case of Catchings v. Florida-McCracken Concrete Pipe Co., 1931, 101 Fla. 792, 135 So. 561, 562, the Supreme Court held that an order that 'judgment is hereby rendered herein for the defendant', is not the equivalent of an order that the plaintiff 'take nothing by his suit, and that the defendant go hence without day', and that the order was not such a final judgment as would warrant review by writ of error.
In the case of Renard v. Kirkeby Hotels, Inc., Fla.App.1958, 99 So.2d 719, the District Court of Appeals, Third District, held that an order granting a motion for summary judgment in a common law action was not a final judgment and subject to review on appeal.
In the case of Brannon v. Johnston, Fla.1955, 83 So.2d 779, the circuit court, in a negligence action on motion for summary judgment, entered an order which found the defendant guilty...
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...Atlantic National Bank of West Palm Beach, Fla.App.1963, 155 So.2d 386; Weinmann v. Ligon, Fla.App.1958, 105 So.2d 204; Baker v. Colley, Fla.App.1958, 104 So.2d 473; Herpel, Inc. v. Pfundston, Fla.App.1958, 104 So.2d 620. The Third District Court of Appeal has held likewise in Shotkin v. De......
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Dewey v. Mynatt
...Atlantic National Bank of West Palm Beach, Fla.App.1963, 155 So.2d 386; Weinmann v. Ligon, Fla.App.1958, 105 So.2d 204; Baker v. Colley, Fla.App.1958, 104 So.2d 473; Herpel, Inc. v. Pfundston, Fla.App.1958, 104 So.2d 620. * * In Altiere v. Atlantic National Bank of West Palm Beach, Fla.App.......
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City of Tallahassee v. Big Bend PBA
...will support an appeal"), citing Catchings v. Florida-McCracken Concrete Pipe Co., 101 Fla. 792, 135 So. 561 (1931) and Baker v. Colley, 104 So.2d 473 (Fla. 2d DCA 1958). Because the order appealed from in this case lacks such words of finality, it is not a final, appealable "Lest this be t......
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Russell v. Russell
...154 Fla. 180, 184, 17 So.2d 300, 301 (1944) and Gates v. Hayner, 22 Fla. 325 (1886), cited therein. See, also, Baker v. Colley, 104 So.2d 473 (Fla. 2d DCA 1958), citing Catchings v. Florida-McCracken Concrete Pipe Co., 101 Fla. 792, 135 So. 561 To those of us who respect precedent but do no......