Rivers v. Ellman, 67--66

• Decision Date: 07 February 1968
• Docket Number: No. 67--66,67--66
• Citation: 206 So.2d 456
• Parties: Diana Ellman RIVERS, Appellant, v. Richard ELLMAN et ux., Appellees.
• Court: Florida District Court of Appeals

Page 456

206 So.2d 456

Diana Ellman RIVERS, Appellant, v. Richard ELLMAN et ux., Appellees.

No. 67--66.

District Court of Appeal of Florida, Second District.

Feb. 7, 1968.

William Lamar Rose, Fort Myers, for appellant.

Joseph P. D'Alessandro, of Pavese, Waldorf, Shields & D'Alessandro, Fort Myers, for amicus curiae.

No appearance for appellees.

PER CURIAM.

The final decree appealed from was entered on October 18, 1966. A motion to set aside the order of sale, sale of property, and other relief was filed by appellant November 23, 1966. On February 8, 1967, an order denying appellant's motion was entered. On February 9, 1967, the appellant filed a notice of appeal stating that she was appealing from the final decree of partition and the order denying appellant's above-mentioned motion.

It will be observed that the appeal taken February 9, 1967, was more than sixty days from the date the final decree was entered. Therefore, we have no jurisdiction to review the final decree entered in the court below.

However, we do have the discretion to treat the appeal of the order denying appellant's motion as an interlocutory appeal under Rule 4.2 of the Florida Appellate Rules, 1962 revision, 32 F.S.A. See Triax, Inc. v. City of Treasure Island, Fla.App.1967, 198 So.2d 870, and cases cited therein.

We will consider the appeal of the order denying the appellant's motion as a perfected interlocutory appeal.

After a careful consideration of the briefs and record-on-appeal, we find that the appellant has failed to demonstrate reversible error and therefore the order appealed is affirmed.

ALLEN, Acting C.J., and PIERCE and HOBSON, JJ., concur.