Morse v. Hendry Corp.
| Decision Date | 08 July 1965 |
| Docket Number | No. 6236,6236 |
| Citation | 177 So.2d 31 |
| Parties | Philip C. MORSE, Jr., and Boat Haven Naples, Inc., a Florida Corporation, Appellants, v. HENDRY CORPORATION, a Florida Corporation, Appellee. |
| Court | Florida District Court of Appeals |
Walter Raymond Condon, of Condon & McDaniel, Naples, for appellants.
Julian Clarkson, of Henderson Franklin, Starnes & Holt, Fort Myers, for appellee.
The appellants, who were plaintiffs below, appeal from an order dismissing with prejudice counts one and two of their three-count complaint in an action at law. The lower court refused to dismiss count three, which was based on negligence, and ordered the defendant to answer. Counts one and two were based on the theory of third party beneficiary and strict liability.
The defendant has filed its motion to dismiss the appeal on the ground that it is an interlocutory order at law not relating to venue or jurisdiction over the person and, therefore, nonappealable.
The case of McLean v. Plant Fruit Company, Fla.App.1964, 167 So.2d 332, was an action wherein an answer and counterclaim were filed and summary judgment was entered dismissing the amended complaint, but left pending the counterclaim. This court held that summary judgment dismissing the amended complaint, but leaving pending a counterclaim, was partial and therefore 'interlocutory' and not 'appealable' within statute and appellate rule.
This court said:
In Longo v. Collins, Fla.App.1958, 106 So.2d 1, the First District Court of Appeal held that a party aggrieved by interlocutory order other than those encompassed by rules, could seek relief therefrom only by appropriate assignment upon appeal from final judgment, except if it could be clearly demonstrated that such would not afford a full, adequate and complete remedy, and in the absence of a clear showing there could be no full and complete remedy by appeal from a final judgment, appeal would be dismissed.
The First District Court, in its opinion by Judge Wigginton,...
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Brown v. Wood, 6801
...a notice of appeal within the required 60 days divests this court of jurisdiction. A recent decision of this court, Morse v. Hendry Corporation, Fla.App.1965, 177 So.2d 31, is directly on point. In Morse the trial court dismissed plaintiffs' Counts 1 and 2, which were based on the theories ......
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Raphael v. Carner, 289
...or order finally adjudicating the entire cause or complaint. Goldfarb v. Bronston, 1944, 154 Fla. 180, 17 So.2d 300; Morse v. Hendry Corporation, Fla.App.1965, 177 So.2d 31. Further, an order which dismisses a complaint but also grants leave to amend is interlocutory. Although final in form......
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Hennagan v. Department of Highway Safety and Motor Vehicles
...on the third amended complaint, but reverse the order dismissing Counts I through IV of the amended complaint. Morse v. Hendry Corporation, 177 So.2d 31 (Fla. 2d DCA 1965). The cause is remanded for further proceedings based on the allegations made in Counts I through IV of the amended comp......
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Allen v. Leybourne
...1 Chipley v. Atkinson, 23 Fla. 206, 1 So. 934, 940 (1887).2 Prosser, Torts, § 106 at 725, 726 (2d Ed. 1955).3 Morse v. Hendry Corporation, Fla.App.1965, 177 So.2d 31.4 Note 2, supra, § 107 at 747; See Evans, Torts to Expectancies on Decedents' Estates, 1944, 93 U.Pa.L.Rev. 187.5 210 N.C. 67......