Alderman v. City of New Smyrna Beach, 132 Fla. 74

Alderman v. City of New Smyrna Beach

132 Fla. 74 | Fla. | 1938

This cause is before the Court on an appeal from an order made by Honorable H.B. Frederick, a *75 Judge of the Circuit Court of Volusia County, Florida, dated February 12, 1938, directing the issuance of a writ of assistance by the Clerk of said Court for the possession of certain lands therein described. An examination of the record shows that the final decree upon which the writ of assistance is based is dated November 1, 1937, each of which were duly recorded in the office of the Clerk of the Circuit Court in and for Volusia County, Florida.

Counsel for appellee has filed in this Court a motion to dismiss the appeal and in support thereof cites the case of Wiley v. Hoggson, 89 Fla. 446, text 452, 105 So. 2d 126, where it was said:

"Where an appeal is taken from an interlocutory order after a final decree has been rendered in the cause, and no appeal is taken from the final decree, the appellate court will dismiss the appeal taken solely from the interlocutory order. Oneida Land Co. v. Richards, 72 Fla. 116, 72 South. Rep. 646. This is done not because of want of jurisdiction in the appellate court, but because non constat the error if any in the interlocutory order appealed from had been cured or rendered immaterial by the final decree rendered before the appeal from the interlocutory order was taken, and because the appellant is at fault in bringing to the appellate court only a portion of the cause by an appeal taken after the whole cause had already been adjudicated and disposed of by final decree."

We are at a loss to understand why the appeal was not taken from the final decree so as to permit this court to review the entire cause in its effort to do substantial justice. It appears that the motion to dismiss the appeal is supported by previous decisions of this Court and well taken. The motion to dismiss the appeal is hereby granted.

WHITFIELD, P.J., and BROWN, J., concur.

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ELLIS, C.J., and TERRELL and BUFORD, J.J., concur in the opinion and judgment.