155 So. 2d 661 | Fla. Dist. Ct. App. | 1963
This matter is before us on a motion by the appellee to dismiss the appeal. Appel-lees contend the appeal is subject to dismissal because it was filed while a timely petition for rehearing was pending.
A summary final decree adverse to the appellants was rendered April 10, 1963. Two days later, on April 12, appellants filed a petition for rehearing. Three days thereafter, on April IS, appellants filed this appeal.
In support of their motion to dismiss the appeal the appellees rely on Seiferth v. Seiferth, Fla.App.1960, 121 So.2d 689, in which it was held that an appeal by one party was not proper during pendency of a timely petition for rehearing which had been filed by an adverse party. That decision is of no force here, where both the petition for rehearing and the subsequent notice of appeal were filed by the same parties or “side.” In State ex rel. Owens v. Pearson, Fla.1963, 156 So.2d 4, recently decided by the Supreme Court, it was determined that an appeal filed within the 10-day period allowed for rehearing, but before any petition for rehearing has been filed, will not waive
For the reasons stated, the motion to dismiss the appeal should be and hereby is denied.
It is so ordered.
. Notwithstanding the filing of the appeal, the chancellor thereafter heard and denied the petition for rehearing, on April 19, 1963.