Sirman v. ConklinSirman v. Conklin
On December 14, 1943, the Court made an order denying defendants’ motion to dismiss plaintiff’s amended bill of complaint, аnd to strike parts thereof; which order was recоrded December 16, 1943.
To this order defendants filed notiсe of appeal on January 4, 1944, which was reсorded January 5, 1944, and an order for supersedeаs until the appeal was determined by the Supremе Court was also entered. (Assignments of error and directions to the clerk were not filed until after the ten days provided by Rule 11, nor was the transcript of record filed here within the time provided by Rule 12.)
Appeal
was
not
the proper method of invoking appellate review of the
interlocutory
order of Deсember 16, 1943. Supreme Court Rule 34, effective April 1, 1942, provides for the review of interlocutory orders and decrees by certiorari
in the manner
provided by the rules relating to constitutional writs of certiorari, which are Rules 27 and 28. Appeal
is,
however, still the proper mеthod of invoking appellate review of final dеcrees. Certiorari under Rule 34 is not to be confused with the common law writ of certiorari which this Court is authorized to grant by Section 5 of Article V of the Constitution, although
the manner or method
for invoking appellate review of interlocutory orders under Rule 34 is the same as that provided in Rules 27 and 28 relating to applications for certiorari and all the common law writs which this Court has the рower under the Constitution to grant. See Rules 34, 27 and 28; also Saffran v. Adler,
The defendants below must have realized that fact that they had adopted the wrong method of invoking review by this Court of the interlocutory order recorded on December 16, 1943, because the аttempted appeal was apparеntly abandoned and on February 29, 1944, they filed in this Court a *306 pеtition for certiorari under our Court Rules 34 and 27. Of course common law certiorari did not lie, as the order attacked was not a final adjudication, but an interlocutory order, and another adequate rеmedy for appellate review under Rule 34 was available.
But this petition for rule-certiorari was nоt filed here until February 29, 1944, to review an order granted by thе lower Court on December 16, 1943, which was beyond the sixty dаy period allowed by the statutes. See Sections 59.08 and 67.03, Fla. Stats., 1941.
We have held that the
right
to appellate review by this Court is
granted
by the statute, while Rule 34 relates only to the manner or method of its exercise (Greater Miami Development Corp. v. Pender,
It follows that the petition for certiorari must be and is hereby
Dismissed.