S. L. T. Warehouse Co. v. Webb
| Decision Date | 26 March 1974 |
| Docket Number | No. 73--593,73--593 |
| Citation | 294 So.2d 712 |
| Parties | S. L. T. WAREHOUSE COMPANY, a Missouri corporation, Appellant, v. Wilmott WEBB, Individually et al., Appellees. |
| Court | Florida District Court of Appeals |
Edna L. Caruso of Howell Kirby, Montgomery D'Aiuto Dean & Hallowes, West Palm Beach, for appellant.
W. Ford Duane of Robertson Williams, Duane & Lewis, Orlando, for appellees-Webb and Brackney.
Richard A. Leigh, Orlando, for appellee-Bank.
Ordered sua sponte, that the above-styled case commenced by the filing of a Notice of Appeal on May 10, 1973, in the Circuit Court for Orange County, Florida, in Case No. 70--5707, is hereby dismissed because it is a non-appealable order.
Appellant has filed a petition for rehearing directed to this court's order dismissing this appeal which involves a plenary appeal from an order dismissing a third party defendant's counterclaim with prejudice. The main suit and the third party complaint remain pending in the lower court.
Appellant relies upon Duncan v. Pullum, Fla.App.1967, 198 So.2d 658, and Leeward and Hart Aero. Corporation v. South Central Airlines, Fla.App.1966, 184 So.2d 454, as authority for the finality and appealability of the order in question. These cases do hold such an order to be appealable. However, this court held in Midstate Hauling Co. v. Liberty Mutual Ins. Co., Fla.App.1966, 189 So.2d 826, that such an order is not appealable, relying upon Bumby & Stimpson, Inc. v. Peninsular Utilities Corp., Fla.App.1965, 179 So.2d 414. The Pullum case emanated out of the Second District Court of Appeal, but was not followed by that court in Potts v. Hayden, Fla.App.1971, 249 So.2d 726, wherein it was held that an appeal would not lie from a final summary judgment on a counterclaim while the main claim between the parties was pending. Since the litigation between the parties is still pending in the trial court and the error vel non of the order in question can be reviewed on appeal from the final judgment, it appears to us the better rule is that laid down in Midstate Hauling Co. v. Liberty Mutual Ins. Co., supra. Accordingly, we adhere to our order dismissing this cause, and the petition for rehearing is denied.
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S. L. T. Warehouse Co. v. Webb
...before us on petition for writ of certiorari granted to review the decision of the District Court of Appeal, Fourth District, reported at 294 So.2d 712 (Fla.App.4, 1974), which purportedly conflicts with Duncan v. Pullum, 198 So.2d 658 (Fla.App.2, 1967), and Leeward and Hart Aeronautical Co......
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Taussig v. Ins. Co. of North America
...a counterclaim even though the original claim remained pending in the court below. The Fourth District Court of Appeal in S.L.T. Warehouse Co., Supra, pointed out the inconsistency in our rulings. Unless we make a definitive ruling, we may reasonably expect continued litigation over the poi......
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Hawthorne v. Ross
...counterclaim and the cause has not been finalized. Accordingly, we dismiss the appeal upon the authority of S.L.T. Warehouse Company v. Webb, 294 So.2d 712, 713 (Fla. 4th DCA 1974). However, as we did in the Webb case, we stress that this dismissal is without prejudice to review the entire ......