Brenner v. GelernterBrenner v. Gelernter
Wе consider'here a motion to quash the appeal in this сause- on the ground that thé notice of appeal was not filed within sixty days from the recording of the order granting a motion to dismiss thе complaint in the lower court.
The order granting the motion tо dismiss the complaint was recorded May 24, 1956. The decretal рortion thereof provided “that Defendants’ Motion to dismiss the Complaint be, and the same is, hereby granted, with leave to the Plaintiffs to amend within 15 days from date, if they so desire. Otherwise, this cause shаll stand dismissed with costs assessed against the Plaintiffs.” The notice of appeal was filed on July 25, 1956, from “the Order Granting Motion to Dismiss * * * bearing, dаte May 22, 1956.”
It is conceded by all parties, and readily apparent, that the appeal was not taken within sixty days from the date the motion to dismiss was recorded in the Chancery , Order Boole' The appellant, however, argues that it was taken within sixty dаys from the expiration of the date within which an amendment was рermitted and therefore, the appeal was timely takеn. Appellant attempts to support this argument by reasoning that the order in question was not effective until the fifteen-day pеriod for amendment elapsed.
The effective date for final orders, judgments, or decrees used in computing the t.ime for taking appeals to the Supreme Court is “the rendition of the final order, judgment or decree appealed from”. 31 F.S.A. Rule 12(2), Suрreme Court Rules. This rule (which is authorized under Sec. 25.47, Florida Statutes 1955, F.S.A.) does not change the .starting point established under Sec. 59.08, Floridа Statutes 1955,
Since the only order before this court wаs dated, and also recorded in the Chancery Order Book over sixty days before the notice of appeal was filеd, appeal was not timely — whether the order was final, or interlocutory as suggested by appellant. Rules 12(2) and 14(2), Florida Suprеme Court Rules.
Of course, the question of the propriety of thе' order might have been rendered moot (through prior leave of the court) if appellant had filed an amended complaint; but this factor does not interrupt the running of appeal time, as would a motion for rehearing or new trial. The reasоn for tolling the time while a motion for rehearing or new trial is pеnding was stated in Kent v. Marvin, Fla.1952,
In the presеnt situation the court’s action is finished, since appellant сontrols the act of amendment; and if he had amended, a nеw situation would have been presented to the trial judge, not the original matter on review.
The appeal is hereby dismissed.