Burton v. Sanders, 5722

• Decision Date: 20 January 1965
• Docket Number: No. 5722,5722
• Citation: 170 So.2d 591
• Parties: Cecile R. BURTON and Harold W. Burton, husband and wife, Appellants, v. Harold N. SANDERS et ux., et al., Appellees.
• Court: Florida District Court of Appeals

Page 591

170 So.2d 591

Cecile R. BURTON and Harold W. Burton, husband and wife, Appellants, v. Harold N. SANDERS et ux., et al., Appellees.

No. 5722.

District Court of Appeal of Florida, Second District.

Jan. 20, 1965.

Errol S. Willes, of Willes, Bittan & Griffin, Fort Pierce, for appellants.

Elton H. Schwarz, Stuart, for appellees.

ALLEN, Judge.

The appellees have moved to dismiss this appeal upon the ground that the appellants are proceeding under Rule 3.2, Florida Appellate Rules, 31 F.S.A., governing final appeals, rather than Rule 4.2, governing interlocutory appeals.

A final decree of foreclosure was rendered in the above entitled cause on March 19, 1964. Subsequently, in September of 1964, motion was made for a deficiency judgment, which was denied. It was from the order denying a deficiency decree that appellants appeal.

The appellees, in their briefs submitted with their motion to dismiss, cite the case of Finneran v. Finneran, Fla.App.1962, 137 So .2d 844, as authority for dismissal. In Finneran, the Circuit Court of Pinellas County entered a post-decretal order, and the appellant, Frank Finneran, sought by full appeal a reversal of this post-decretal order. Mrs. Finneran, the appellee, filed a motion to dismiss on the ground that an appeal should have been taken in accordance with the rule governing interlocutory appeals. This court dismissed the appeal saying:

'In construing Rules 3.2 and 4.2 in relation to the pending motion, we come to this conclusion: that the order in question is an interlocutory decree and not a final decree and that this appeal therefore, taken under Rule 3.2, must be dismissed. The motion to dismiss is granted.'

We recede from that part of our decision in Finneran to the effect that such an appeal must be dismissed. We do not consider the form an appeal takes, whether final or interlocutory, to be jurisdictional. We adopt the rule set forth in Crepaldi v. Wagner, Fla.App.1961, 128 So.2d 759, wherein the First District Court of Appeal, in an opinion written by Judge Wigginton, then Chief Judge, held that where a full appeal had been taken, when the appeal was interlocutory in character, the District Court of Appeal, in exercise of its discretion, could treat and consider the appeal as an interlocutory appeal, even though not designated as such in the notice of appeal as required by the appropriate rules of appellate procedure. See also Lane v. Exmoor School, Inc., Fla.App.1961, 128 So.2d 773.

Florida Appellate Rule 4.2 provides:

'Appeals to district courts from interlocutory orders at law relating to venue or jurisdiction over the person, appeals to the appropriate court from interlocutory orders or decrees in equity and orders, judgments or decrees entered in law or equity after final judgment or decree, except those relating to motions for new trial or reconsideration, may be prosecuted in accordance with this rule; provided that nothing in this rule shall preclude the review of an interlocutory order or decree in law or equity on appeal from the final judgment or decree as otherwise authorized by these rules; and provided, however, this rule shall not be construed as limiting or affecting the power of the district courts of appeal or the circuit courts in reviewing any appropriate interlocutory order by common law certiorari.'

In Shannon v. Shannon, Fla.App.1962, 136 So.2d 253, the First District Court of Appeal held that a decree in equity awarding a wife a sum equivalent to one-half of the value of improvements, which she made in the jointly owned home awarded to her in the divorce decree, was a 'final decree'; and that the husband had a choice of obtaining review of the decree either pursuant to the procedure relating to appeals from final decrees in equity or in accordance with the procedure relating to interlocutory appeals.

The court, in its opinion at page 255, said:

'* * * It is thus seen that under Rule 4.2, relating to interlocutory appeals, appellate review may be obtained of interlocutory orders or decrees in equity as well as orders or decrees entered after final decree. The decree appealed in this case being one in equity entered after final decree, we are faced with the question of whether Rule 4.2 provides the exclusive method for reviewing this type of decree, or whether it may properly be reviewed in accordance with the procedure prescribed by Rule 3 relating to appeals from final judgments and decrees.'

Then, at page 257, it is stated:

'* * * Considering the circumstances of the proceeding as outlined in the forepart of this opinion, it is our conclusion that the decree possesses all the characteristics of a final decree. It fully adjudicates the merits of the petition brought by the wife as regards her claim for contribution from the husband for his share of the cost of improvements made by her in the family home. This issue has now been concluded by the court's decree, and nothing further remains to be done with respect to the controversy. This being the case, the appellant had a...