Oxford v. Polk Federal Sav. & Loan Ass'n of Lakeland

• Decision Date: 30 November 1962
• Docket Number: No. 3135,3135
• Citation: 147 So.2d 603
• Parties: T. J. OXFORD and T. J. Oxford, Jr., d/b/a Oxford Lumber Company, Appellants, v. POLK FEDERAL SAVINGS & LOAN ASSOCIATION OF LAKELAND, etc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 603

147 So.2d 603

T. J. OXFORD and T. J. Oxford, Jr., d/b/a Oxford Lumber Company, Appellants, v. POLK FEDERAL SAVINGS & LOAN ASSOCIATION OF LAKELAND, etc., et al., Appellees.

No. 3135.

District Court of Appeal of Florida, Second District.

Nov. 30, 1962.

Rehearing Denied Jan. 2, 1963.

Oliver L. Green, Jr., of Oxford & Oxford, Lakeland, for appellants.

E. Randolph Bentley, of Bentley, Miller & Sinder, Lakeland, for appellees.

ALLEN, Acting Chief Judge.

Appellants-intervenors, in a mortgage foreclosure proceeding below, are appealing from an order entered after a hearing held upon their petition for rehearing.

The appellee, Polk Federal Savings & Loan Association, brought suit to foreclose its first mortgage on certain described premises. Named as defendants were the mortgagors, a second mortgagee, and a labor lien claimant. Appellants intervened attempting to establish a lien for materials furnished and the priority thereof on the visible commencement theory.

The lower court, in a final decree entered November 22, 1961, held that the labor lien claimant, Polk Federal Savings & Loan Association, and the second mortgagee were entitled to the liens claimed by them and established priority in that order. The court held also that appellants had failed to prove a right to a lien and denied their claim.

The court, upon appellants' petition for rehearing, entered an order on January 15, 1962, granting a money judgment to the appellants-intervenors against the defendants Carter but made no changes in the form of the decree entered on November 22nd.

The appellants appeal from the order of January 15th.

The appellee, Polk Federal Savings & Loan Association, filed a motion to dismiss this appeal which this court carried over for determination to the time of the decision on the merits. We grant the appellee's motion to dismiss this appeal since no appeal was taken from the adverse ruling of the lower court which was apparent in the November 22nd final decree. This decree was final in form and ordered the foreclosure of the property in question. No supersedeas was taken from this decree and the property in question has been sold at a foreclosure sale to the mortgagee, Polk Federal Savings & Loan Association.

In short, as to the matters about which appellants complain in their appeal, the order entered subsequent to the petition for rehearing was a denial of said petition. It is well settled that an appeal from an order denying a petition for rehearing does not bring up for review the final 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, nonappealable where, as here, it presents no issue for review other than those finally determined by the decree from which no appeal was taken. Finley v. Finley, Fla.1958, 103 So.2d 191; compare Central National Ins. Co. of Omaha v. Piotrowski, Fla.App.1962, 142 So.2d 103.

Our Supreme Court, in Hollywood, Inc. v. Clark, supra, had practically the same question as is involved in the instant case. In the Hollywood case an appeal was taken from an order granting appellees' petition for rehearing and modifying the chancellor's former decree which was in favor of the appellant and quieted appellant's title in and to a certain lot in Hollywood. The former decree was modified on rehearing so as to require the plaintiff to reimburse the defendants, appellees, for...