110 So. 2d 48 | Fla. Dist. Ct. App. | 1959
This cause is before the court upon a petition for certiorari which seeks to review an interlocutory order in a common law action dismissing a complaint with leave to amend.
Generally, interlocutory orders in common law actions are not reviewable by certiorari unless it clearly appears that there is no full, adequate and complete remedy by appeal after final judgment available to the petitioner, such as where the lower court acts without and in excess of its jurisdiction, or the order does not conform to the essential requirements of law and may cause material injury throughout subsequent proceedings for which the remedy by appeal would be inadequate. See Brooks v. Owens, Fla.1957, 97 So.2d 693, and cases cited therein. Likewise, under Florida Appellate Rule 4.2(a), 31 F.S.A., review of interlocutory orders in common law actions is restricted to those “ * * * relating to venue or jurisdiction over the person ;{í * * »
The petitioner now seeks a review by certiorari of the order of dismissal upon the basic grounds that the trial court, in granting the motion to dismiss the complaint, departed from the essential requirements of the law and the opinion of this court in Moylan v. Estes, Fla.App.1958, 102 So.2d 855.
We conclude that the order here sought to be reviewed falls within the exceptions to the general rule and as such may be reviewed by certiorari. The opinion of this court in a prior review by appeal clearly rejected the trial court’s holding that no recovery could be had under an implied contract. Consequently, the subsequent dismissal of the petitioner’s complaint impliedly, if not directly, contravened the law of the case as established in the prior appeal and was inconsistent therewith. See Hodges v. Logan, Fla.1955, 82 So.2d 855; Berger v. Leposky, Fla.1958, 103 So.2d 628. We further conclude that the questioned order should be quashed and the respondent required to answer the complaint within a reasonable time to be fixed by the trial judge.
Accordingly, the petition for certiorari is granted and the order sought to be reviewed is quashed.
Certiorari granted.