Erwin v. Brooks

• Decision Date: 21 June 1974
• Docket Number: No. 73-631,73-631
• Citation: 297 So.2d 314
• Parties: Bert F. ERWIN, Appellant, v. Peggy J. Erwin BROOKS, Appellee.
• Court: Florida District Court of Appeals

Page 314

297 So.2d 314

Bert F. ERWIN, Appellant, v.Peggy J. Erwin BROOKS, Appellee.

No. 73-631.

District Court of Appeal of Florida, Second District.

June 21, 1974.

Rehearing Denied July 31, 1974.

David J. Kurland, of Kurland & Johnson, Clearwater, for appellant.

Carleton L. Weidemeyer, of Wightman, Rowe, Weidemeyer, Jones & Turnbull, and George A. Routh, Clearwater, for appellee.

HOBSON, Acting Chief Judge.

Appellant seeks reversal of orders confirming sale and directing disbursements in a partition proceeding which would annul the judgment as a whole.

It appears from the clerk's certificate of disbursements in the record that $1,004.73 was disbursed to appellant as his portion of the net proceeds of the sale.There is nothing in the record to indicate that appellant has tendered this amount back to the clerk.

It is a well-settled rule in Florida that one may not accept a benefit under a judgment and then appeal from it when the effect of the appeal may be to annul the judgment as a whole.McMullen v. Ft. Pierce Financing Construction Co., 1933, 108 Fla. 492, 146 So. 567;Capital Finance Corporation v. Oliver, 1934, 116 Fla. 790, 156 So. 736;In re Fredcris, Incorporated, Fla.App.3rd1958, 101 So.2d 49;Rayle v. Merrill, Fla.App.1st1962, 141 So.2d 288;Cannon Sand & Rock, Inc. v. Maule Industries, Inc., Fla.App.3rd1967, 203 So.2d 636.See alsoAnno.169 ALR 985, 997;and 2 Fla.Jur., Appeals, § 12.

Appeal dismissed.

McNULTY and BOARDMAN, JJ., concur.