Opinion
May 9, 1950. Rehearing Denied May 29, 1950.
Appeal from the Circuit Court for Dade County, George E. Holt, J.
Bouvier, Helliwell Clark, Miami, for appellant.
Redfearn Ferrell, Miami, for appellee.
The appellee has moved to dismiss this appeal on the ground that it was prosecuted from an order denying a motion for new trial and not from a final judgment. The question is whether the motion is well founded.
Appeals in common law actions are regulated by statute. Section 59.02(1), Florida Statutes 1941, as amended, prescribes: "Appeals in cases at law lie only from final judgments, except as specified in §§ 59.03, 59.04 and 59.05, of these statutes." See Sec. 2, chapter 22854, Laws of 1945, F.S.A. § 59.02(1).
By sections 59.03, 59.04 and 59.05, respectively, the legislature has provided:
"Every rule or summary order of court to any of its officers, their sureties or deputies, which is, in effect, a judgment for the payment of money or other things, shall be construed a final judgment or decree from which an appeal may be taken." See Sec. 3, Ch. 22854, Laws 1945.
"Upon the entry of an order granting a new trial, the party aggrieved may, without waiting for final judgment, prosecute an appeal to the proper appellate court, which, if the cause be reversed, may direct that final judgment be entered in the trial court for the party obtaining the verdict, unless motion in arrest of judgment or for judgment non obstante veredicto be made and prevail." Sec. 4, Ch. 22854, Laws 1945. (Italics supplied.) "When, because of any decision or ruling of the court on the trial of a cause, it becomes necessary for the plaintiff to suffer a nonsuit, he may appeal therefrom, and the facts, points, rulings, and decisions may be preserved for review, by the appellate court, as in other cases." See Sec. 5, Ch. 22854, Laws 1945.
The notice of appeal in this case reads: "Comes now the defendant, Douglas-Guardian Warehouse Corporation, defendant in the above entitled cause, by its undersigned attorneys, and enters this, its notice of appeal from the order of the court, made and entered in this cause on June 13, 1949, denying the defendant's motion for a new trial." It is plain from a mere reading of the notice of appeal that the order appealed from is neither a final judgment nor such an order as comes within the exceptions provided in sections 59.03, 59.04 or 59.05. The motion to dismiss the appeal must therefore be granted.
It has been suggested by the appellant that inasmuch as it has filed assignments of error with its appeal the court may treat the order denying the motion for new trial as an appeal from a proper judgment or order and proceed to review the questions presented by the assignments of error. Unfortunately for the appellant, this court is without authority to treat the appeal in this manner, as the defect pointed out in the motion to dismiss the appeal is one of jurisdiction. See Henderson v. Stevens, 157 Fla. 641, 26 So.2d 656.
It follows that the motion to dismiss the appeal should be granted.
It is so ordered.
TERRELL, Acting C.J., and CHAPMAN and HOBSON, JJ., concur.