Noble v. McNeal, G-350
| Decision Date | 14 October 1965 |
| Docket Number | No. G-350,G-350 |
| Citation | 179 So.2d 126 |
| Parties | Fred B. NOBLE, Petitioner, v. Erice E. McNEAL and Jimmie S. McNeal, his wife, Respondents. |
| Court | Florida District Court of Appeals |
Joseph K. Skipper, Jacksonville, for petitioner.
J. Ray Permenter, Jr., Jacksonville, for respondents.
This is on petition for writ of certiorari to review interlocutory order of Circuit Court, Duval County, Florida denying motion to strike from the answer of the defendants certain allegations of defense.
Respondents accepted delivery of a deed containing a mortgage assumption clause, occupied the premises and made payments on the assumed mortgage for approximately two years before defaulting in the payments. Plaintiff-appellee sued at law on the note. Respondents' answer asserted, inter alia, as defenses that defendants-respondents did not intend to become personally obligated to pay the mortgage, did not authorize anyone to type the assumption clause in the deed, that there was no consideration for the assumption clause and that said defendants had not read the deed and did not know of 'this state of affairs' until served with complaint in this cause. Petitioner-plaintiff filed motion to strike the portions of the answer asserted as defenses, related supra, on the ground the same did not constitute a defense. The court denied the motion and the matter appears before this court on petition for writ of certiorari to review the order of the circuit court denying the motion to strike.
Appeal from interlocutory order in a common-law action may be taken only where such order raises a question of venue or jurisdiction over the person. Florida Appellate Rule 4.2, 31 F.S.A.
This court has repeatedly held that certiorari would be granted only in those cases in which it clearly appears there exists no adequate remedy available to petitioner by appeal after final judgment. To grant the writ sought would lead toward an unreasonable burden on this court and at the same time tend toward an unwarranted interference in trial procedures. The record in this case does not reveal that irreparable damage will be done to petitioner by denying the petition at this time as the same matter may be reviewed by this court, if desired, after final judgment and appeal therefrom. See State Road Department of Florida v. Bainbridge et al., Fla.App., 171 So.2d 609; Pullman Co. v. Fleishel et al., Fla.App. 101 So.2d 188, and Boucher v. Pure Oil Company, etc., Fla.App.,...
To continue reading
Request your trial
-
Modine Mfg. Co. v. ABC Radiator, Inc.
...by extraordinary writ with the actions of a trial court when the trial court's orders are reviewable upon appeal. See Noble v. McNeal, 179 So.2d 126 (Fla. 1st DCA 1965). It follows that the denial of the motion to require compliance with the mandate was not a ruling upon the merits of Modin......
-
Shearson, Hammill & Co. v. Vouis, s. 70--1194
...appeal is not available to review the lower court order in a common law action, we dismiss the interlocutory appeal. Noble v. McNeal, Fla.App.1965, 179 So.2d 126; Flagler Federal Savings and Loan Association of Miami v. Whiting, Fla.App.1963, 148 So.2d 555. However, all the matters sought t......