Sanders v. McCaughey

• Decision Date: 07 December 1966
• Docket Number: No. 6858,6858
• Parties: Edwin J. SANDERS, Jr., Executor of the Estate of Hubert S. Steele, Deceased, Appellant, v. Frank McCAUGHEY, Appellee.
• Court: Florida District Court of Appeals

Page 774

192 So.2d 774

Edwin J. SANDERS, Jr., Executor of the Estate of Hubert S. Steele, Deceased, Appellant, v. Frank McCAUGHEY, Appellee.

No. 6858.

District Court of Appeal of Florida, Second District.

Dec. 7, 1966.

Harold S. Wilson, of Ford, Wilson & Walker, Largo, and Alan R. Williams, Madeira Beach, for appellant.

Jack S. Carey, of Carey & Harrison, St. Petersburg, for appellee.

ALLEN, Chief Judge.

The appellant, defendant below, has filed an appeal from a final judgment entered October 4, 1965, against the Estate of Hubert S. Steele for $1,994.70, plus interest and costs.

We will review certain procedural irregularities which occurred in the court below as well as on this appeal.

On October 4, 1965, final judgment was entered against appellant. Appellant filed, on October 14, 1965, a motion for rehearing directed toward that judgment and on November 22, 1965, a hearing was held thereon. Before decision on the motion for rehearing, appellant, on November 30, 1965, filed his notice of appeal here seeking to review the October 4, 1965, judgment. On December 7, 1965, appellant filed assignments of error, one being the lower court's failure to grant his motion for rehearing. On May 25, 1966, the lower court granted the motion for rehearing, reversed its judgment of October 4, 1965, and entered final judgment for the appellant-defendant. On June 2, 1966, the plaintiff-appellee filed his petition for rehearing, which the lower court granted. The lower court then entered an order vacating its order of May 25, 1966, because it found that appellant, by filing his notice of appeal before the lower court could rule on the motion for rehearing, waived his motion.

Appellant now seeks to have the May 25, 1966 judgment reinstated.

We find that appellant waived his October 14, 1965, motion for rehearing when he filed his November 30, 1965, notice of appeal before the lower court could rule on his motion.

We comment at this time that the lower court lost jurisdiction when the appeal was taken to this court on November 30, 1965, by the appellant. Therefore, the lower court had no authority to set aside the judgment of October 4, 1965, appealed to this court, nor to enter the judgment on May 25, 1966, in favor of the appellant. Both the final judgment entered on May 25, 1966, and the order of June 16, 1966, were nullities. See: Perez v. City of Tampa, Fla.App.1966, 181 So.2d 571; Bannister v. Hart, Fla.App.1962, 144 So.2d 853.

Upon review of the...