Opinion
June 4, 1954.
Appeal from the County Court.
Irving F. Morse, Clermont, for appellant.
T.C. Cork, Clermont, for appellee.
Ida Mathilda Peterson, the widow of Richard Peterson, invoking the provisions of section 732.41 of the Florida Statutes, F.S.A., filed, on July 16, 1953, in the county judge's court of Lake County a petition for the construction of certain provisions of her deceased husband's will which had been probated in such court, contending that under and because of such provisions she is the owner of certain real property of which her husband died seized and possessed.
The executor (who had not been finally discharged) moved to dismiss the petition, assigning as grounds for his motion (1) that the court, by a prior order of December 11, 1952 (on the executor's petition for the approval of his final returns and for an order of distribution and final discharge), had authorized and directed the executor to convey, and he had conveyed, to himself as trustee the real property in dispute and that such order of December 11, 1952, from which no appeal had been prosecuted, "is the law of the case and is res judicata"; (2) that the court, "having fixed the law of this case, is now without jurisdiction over the subject matter"; and (3) that the court "lacks jurisdiction over the person and property."
By his order of July 21, 1953, the county judge denied the executor's motion and he appealed to the circuit court from such adverse order.
Although the jurisdictional question was not raised in the court below or here, nevertheless it is evident that the county judge's order of July 21, 1953, was not an order finally determining the rights of either party to the proceeding in which the order was entered and, therefore, was not appealable. See sections 732.15 and 732.16 of the Florida Statutes, F.S.A.
Instead of dismissing the appeal, the circuit court (not noting its lack of jurisdiction) by its order of October 23, 1953, affirmed the challenged order; and from the order of affirmance the executor has appealed to this court.
The order of the circuit court from which the appeal to this court has been prosecuted is reversed with the direction that the circuit court, on the remanding of the cause to it, dismiss the appeal taken from the county judge's order of July 21, 1953.
ROBERTS, C.J., and TERRELL and SEBRING, JJ., concur.