Thomkin Corp. v. City of Miami Beach

• Decision Date: 22 December 1938
• Citation: 135 Fla. 360,185 So. 422
• Parties: THOMKIN CORPORATION v. CITY OF MIAMI BEACH et al.
• Court: Florida Supreme Court

185 So. 422

135 Fla. 360

THOMKIN CORPORATION v. CITY OF MIAMI BEACH et al.

Florida Supreme Court

December 22, 1938

Suit by the Thomkin Corporation against the City of Miami Beach and others. From an order of the circuit court overruling and denying petition of the plaintiff for rehearing in the cause, the plaintiff appeals. The appellees filed motion to affirm the order appealed from.

Motion granted. Appeal from Circuit Court, Dade County; Paul D. Barns, Judge.

COUNSEL

Shutts & Bowen, L. S. Julian, and H. N. Boureau, all of Miami, for appellant.

Loftin, Stokes & Calkins, of Miami, for appellee.

OPINION

PER CURIAM.

This cause is before the Court on an appeal taken from an order dated April 28, 1928, entered by the Circuit Court of Dade County, Florida, overruling and denying a petition of the plaintiff below, appellant here, for a rehearing in this said cause. The final decree, as shown by the transcript, was dated February 5, 1938, and an appeal was not taken from the final decree. We have examined the petition for rehearing and the different exhibits attached, and made a part thereof, and have considered the materiality thereof and fail to find error on the part of the lower court in making the order appealed from, since the motion for rehearing presents no matter showing error that this Court can consider on the appeal taken only from the order denying a rehearing and not from the final decree.

Counsel for appellees filed a motion in this court to affirm the order appealed from and have assigned a number of grounds therefor, one of which being that the final decree was entered more than six months prior to the entry of the pending appeal and for said reason no appeal here would lie. It is not necessary to recite the other grounds of the motion to affirm, as we think and believe the appeal here is in principle controlled by Gasque v. Ball, 71 Fla. 257, 71 So. 329. The motion to affirm the order appealed from is granted.

It is so ordered.

TERRELL, C.J., and WHITFIELD, BROWN, and CHAPMAN, JJ., concur.