Bumby & Stimpson, Inc. v. Peninsula Utilities Corp.
| Decision Date | 02 November 1965 |
| Docket Number | No. 65-277,65-277 |
| Citation | 179 So.2d 414 |
| Parties | BUMBY & STIMPSON, INC., Appellant, v. PENINSULA UTILITIES CORPORATION, Appellee. |
| Court | Florida District Court of Appeals |
Fishback, Davis, Dominick & Troutman, Orlando, for appellant.
Scott, McCarthy, Preston & Steel and Talbot D'Alemberte, Miami, for appellee.
Before TILLMAN PEARSON, CARROLL and SWANN, JJ.
The appellee has moved to dismiss this appeal on the basis that the order appealed is not final. The appeal is from an order entered in a common law action and this court has jurisdiction on appeal only from final judgments and from interlocutory orders relating to venue or jurisdiction over the person and orders or judgments entered after final judgments (except those relating to motion for new trial or reconsideration). Constitution of the State of Florida, Art. V, § 5(3), F.S.A.; Fla.App.Rules 4.2, 31 F.S.A.
The pertinent history of the case is that on March 12, 1965, the trial court entered 'Summary Judgment' as follows:
It will be observed that the order is final in form. Nevertheless the order left pending and undisposed defendant's compulsory counterclaim against the plaintiff. Notice of appeal from the quoted order was filed to this court on April 5, 1965. On May 12, 1965, the trial court entered the following order on the counterclaim:
'This cause came on before the court on the stipulation of the parties for dismissal of the counterclaim without prejudice and the court having approved that stipulation it is
'Ordered and adjudged that the counterclaim be and the same is hereby dismissed without prejudice.'
On September 16, 1965, after the time appellee had filed its brief on this appeal, it moved to dismiss the appeal for lack of jurisdiction of this court to review the order appealed.
A notice of appeal filed prior to rendition of a final judgment or decree cannot confer jurisdiction upon the court. Shaw v. Hill, Fla.App.1959, 114 So.2d 721; Tom v. State ex rel. Tom, Fla.App.1962, 143 So.2d 226. Where an appeal is taken in violation of the rules so that it is not legally sufficient to confer jurisdiction of the subject matter upon the court, the appearance of the appellee cannot of itself give the court jurisdiction of the subject matter, and the appeal should be dismissed by the court sua sponte. Provident...
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Del Castillo v. Ralor Pharmacy, Inc., 86-1023
...to appeal. 13 See Taussig v. Insurance Company of North America, 301 So.2d 21 (Fla. 2d DCA 1974); Bumby & Stimpson, Inc. v. Peninsula Utils. Corp., 179 So.2d 414 (Fla. 3d DCA 1965). Instead, like all non-final orders, it is deemed to have merged into, and is properly reviewable on appeal fr......
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Harris v. P.S. Mortg. and Inv. Corp.
...(Fla. 2d DCA 1981); Taussig v. Insurance Co. of North America, 301 So.2d 21, 22 (Fla. 2d DCA 1974); Bumby & Stimpson, Inc. v. Peninsula Util. Corp., 179 So.2d 414, 415-16 (Fla. 3d DCA 1965); see also Duncan v. Pullum, 198 So.2d at 662 (declination to review interlocutory orders because they......
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S. L. T. Warehouse Co. v. Webb
...Mutual Ins. Co., Fla.App.1966, 189 So.2d 826, that such an order is not appealable, relying upon Bumby & Stimpson, Inc. v. Peninsular (sic) Utilities Corp., Fla.App.1965, 179 So.2d 414. The Pullum case emanated out of the Second District Court of Appeal, but was not followed by that court i......
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Blue v. Weinstein, 79-329
...compulsory counterclaim would not be final. S. L. T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974); Bumby & Stimpson, Inc. v. Peninsula Utilities Corp., 179 So.2d 414 (Fla. 3d DCA 1965).2 In the event the defendants plead a proper cause of action for abuse of process by amendment upon rema......