Klemenko v. Klemenko
| Decision Date | 18 September 1957 |
| Citation | 97 So.2d 11 |
| Parties | Mary KLEMENKO, Appellant, v. Alex KLEMENKO, Appellee. |
| Court | Florida Supreme Court |
Simons & Simons, Miami, for appellant.
Prebish & DuVal, Miami, for appellee.
Appellant Mary Klemenko, who was plaintiff below, by appeal seeks reversal of an order of the Chancellor denying her petition for rehearing of a final decree entered in favor of the appellee Alex Klemenko, who was defendant below.
In order to dispose of the case we must decide whether a petition for rehearing in chancery is subject to review by appeal.
It is unnecessary to delineate the facts on the merits. On March 25, 1957, the Chancellor entered a final decree in favor of the appellee Alex Klemenko. On April 1, 1957, appellant filed her petition for rehearing setting out certain alleged errors in the entry of the final decree. On April 17, 1957, appellant filed another document entitled 'Motion for Vacate Final Decree and for Verdict for Plaintiff.' For purposes of this decision we treat the two documents as being tantamount to a composite petition for rehearing. Actually the April 17 document was filed too late under the rules. 31 F.S.A., Florida Rules of Civil Procedure, rule 3.16. On April 25, 1957, the Chancellor entered an order denying the motion to vacate and the petition for rehearing. On May 6, 1957, appellant filed her notice of appeal seeking the review of 'the order, judgment or decree of the Circuit Court of Dade County bearing date of the 25th day of April, 1657, which order denied the plaintiff's motion to vacate final decree and for verdict for the plaintiff.'
We find it unnecessary to consider the various contentions of the parties on the merits of the controversy. This appeal will have to be dismissed for jurisdictional reasons. A review of the procedural steps employed to bring the case before us will show that no appeal has been taken from the final decree. This decree therefore stands effective and binding between the parties.
Notice of appeal is directed only to the order of the Chancellor denying the two motions which sought a rehearing of the cause. If we were to undertake to pass on the correctness of the ruling on the petitions for rehearing it would be necessary to examine the final decree and the record which produced it. If we were to do this we would be undertaking to review a final decree which has not been assaulted by the appellant herself. The product of this approach would be to give the...
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Scheuermann v. Shamas, 57-123
...from the final decree was perfected, the review directed to the later order can not reach back to the final decree. See Klemenko v. Klemenko, Fla.1957, 97 So.2d 11. Accordingly, this appeal must be treated as a petition for certiorari, which hereby is So ordered. HORTON and PEARSON, JJ., co......
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Oxford v. Polk Federal Sav. & Loan Ass'n of Lakeland
...decree. Fullerton v. Clark, 1940, 142 Fla. 200, 194 So. 481; Hollywood, Inc. v. Clark, 1943, 153 Fla. 501, 15 So.2d 175; Klemenko v. Klemenko, Fla.1957, 97 So.2d 11; McNary v. Hudson, Fla.App.1959, 110 So.2d 73; Moore v. Carlisle, Fla.App.1959, 111 So.2d 457. Such an order is, in effect, no......
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Quackenbush v. Town of Palm Beach, 3437
...upon which this court could afford to appellant the requested review. The appeal must therefore be dismissed. See Klemenko v. Klemenko, Fla.1957, 97 So.2d 11; Finley v. Finley, Fla.1958, 103 So.2d 191; McNary v. Hudson, Fla.App.1959, 110 So.2d 73; Oxford v. Polk Federal Savings & Loan Assoc......
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McNary v. Hudson, 912
...established for its consideration. The appeal will have to be dismissed. See Finley v. Finley, Fla.1958, 103 So.2d 191; Klemenko v. Klemenko, Fla.1957, 97 So.2d 11; and section 59.02(2), Appeal dismissed. SHANNON, J., and DREW, E. HARRIS, Associate Judge, concur. ...