Lauderdale by the Sea Development Co. v. Lauderdale Surf & Yacht Estates

• Decision Date: 05 November 1948
• Citation: 160 Fla. 929,37 So.2d 364
• Court: Florida Supreme Court
• Parties: LAUDERDALE BY THE SEA DEVELOPMENT CO. et al. v. LAUDERDALE SURF & YACHT ESTATES, Inc., et al.

37 So.2d 364

160 Fla. 929

LAUDERDALE BY THE SEA DEVELOPMENT CO. et al. v. LAUDERDALE SURF & YACHT ESTATES, Inc., et al.

Florida Supreme Court

November 5, 1948

Appeal from Circuit Court, Broward County; Jos. S White, judge.

Roach & Hoyl, of Fort Lauderdale, for appellants.

James M Crum and McCune, Hiaasen, Fleming & Kelley, all of Fort Lauderdale, for appellees.

BARNS, Justice.

The appellees have moved to dismiss the appeals on the ground that they were not entered within the limitation of time prescribed by Section 59.08, F.S.1941, F.S.A.

Under date of April 1, 1948, the chancellor, on final hearing upon the plaintiffs' bill, defendants' answer, counterclaim and testimony, entered a final decree whereby the defendants were enjoined and restrained from interfering with plaintiffs' enjoyment of certain property adjudged to be the property of the plaintiffs and were enjoined from removing sand from the beach between the plaintiffs' property and the water, and denied the defendants' counterclaim but, in said final decree, provided, however that:

'The Court retains jurisdiction of this cause to settle all questions that the Court has jurisdiction to settle under the pleadings and the proceedings in this case not settled by this decree and to make such other and further orders and decrees herein as shall be necessary to make the same effectual.'

Thereafter, on April 17, 1948, the defendants filed a petition for rehearing.

Thereafter, on April 22, 1948, the plaintiffs filed a motion for taxation of costs.

Thereafter, on May 12, 1948, the chancellor in passing upon said motion for rehearing and said motion for taxation of costs, ordered and decreed as follows:

'It is ordered and decreed that defendants' petition for rehearing is denied; the motion to strike filed March 8, 1948, is denied; the petition for an order granting the benefits of the final decree to certain individuals is denied; Court costs amounting to $176.10 are assessed against the defendants.'

Thereafter, on July 9, 1948, the defendants entered their notice of appeal (1) to review the final decree of May 12, 1948, and (2) to review the judgment and decree dated April 1, 1948.

We now have before us for adjudication the appellees' motion to dismiss the appeal on the ground that the appeal was not prosecuted to this Court within the time allowed by law, to-wit: Sixty days, as provided by Section 59.08, F.S.1941, F.S.A., Laws 1945, c. 22854, § 8, as follows:

59.08 Time for Taking Appeals or Filing Petitions for Certiorari:

'Appeals, including petitions for review by certiorari, or proceedings in the nature of certiorari, shall be taken or filed within sixty days from and after the entry of the order, decision, judgment, or decree appealed from.'

The decree of April 1, 1948, purported to and did adjudicate the equities between the parties. It was a judgment on the merits of the controversy. It was not interlocutory in character or quality. Upon its entry the time began to run when the Supreme Court could acquire jurisdiction. It was subject to appeal. The time began to run when the circuit court would lose jurisdiction as to the matters adjudicated, subject, however, to being upset in the event of the granting of a rehearing by the chancellor at a time when he had jurisdiction for such purpose.

The mere filing of a petition for rehearing will not stay the effect of the...