From Casetext: Smarter Legal Research

Erwin v. Brooks

District Court of Appeal of Florida, Second District
Jul 31, 1974
297 So. 2d 314 (Fla. Dist. Ct. App. 1974)

Opinion

No. 73-631.

June 21, 1974. Rehearing Denied July 31, 1974.

Appeal from the Circuit Court for Pinellas County, Charles M. Phillips, Jr., J.

David J. Kurland, of Kurland Johnson, Clearwater, for appellant.

Carleton L. Weidemeyer, of Wightman, Rowe, Weidemeyer, Jones Turnbull, and George A. Routh, Clearwater, for appellee.


Appellant seeks reversal of orders confirming sale and directing disbursements in a partition proceeding which would annul the judgment as a whole.

It appears from the clerk's certificate of disbursements in the record that $1,004.73 was disbursed to appellant as his portion of the net proceeds of the sale. There is nothing in the record to indicate that appellant has tendered this amount back to the clerk.

It is a well-settled rule in Florida that one may not accept a benefit under a judgment and then appeal from it when the effect of the appeal may be to annul the judgment as a whole. McMullen v. Ft. Pierce Financing Construction Co., 1933, 108 Fla. 492, 146 So. 567; Capital Finance Corporation v. Oliver, 1934, 116 Fla. 790, 156 So. 736; In re Fredcris, Incorporated, Fla.App.3rd 1958, 101 So.2d 49; Rayle v. Merrill, Fla.App.1st 1962, 141 So.2d 288; Cannon Sand Rock, Inc. v. Maule Industries, Inc., Fla.App.3rd 1967, 203 So.2d 636. See also Anno. 169 ALR 985, 997; and 2 Fla.Jur., Appeals, § 12.

Appeal dismissed.

McNULTY and BOARDMAN, JJ., concur.


Summaries of

Erwin v. Brooks

District Court of Appeal of Florida, Second District
Jul 31, 1974
297 So. 2d 314 (Fla. Dist. Ct. App. 1974)
Case details for

Erwin v. Brooks

Case Details

Full title:BERT F. ERWIN, APPELLANT, v. PEGGY J. ERWIN BROOKS, APPELLEE

Court:District Court of Appeal of Florida, Second District

Date published: Jul 31, 1974

Citations

297 So. 2d 314 (Fla. Dist. Ct. App. 1974)

Citing Cases

Niles v. County of Volusia

Its argument is based on the general rule that one may not accept the benefits under a judgment and then…

McLean v. Love

Full payment to the bank of the entire one hundred thousand dollars, with attorneys' fees was a condition…