Summary
In Perez v. City of Tampa, 181 So.2d 571 (D.C.A.Fla. 1966), we denied the motion to dismiss but noted that the record-on-appeal had not yet been filed with this Court.
Summary of this case from Perez v. City of TampaOpinion
No. 6374.
January 5, 1966.
Appeal from the Circuit Court for Hillsborough County, James S. Moody, J.
Harry M. Hobbs, of Hobbs, de la Parte, Whigham Gonzalez, Tampa, for appellants.
Theodore C. Taub, Asst. City Atty., Tampa, for appellee.
Defendant City of Tampa moves to dismiss the appeal of the plaintiff Gabriel Perez.
The plaintiff was the driver of an automobile which collided with a truck owned by the City of Tampa. Plaintiff's wife Beatrice was a passenger in the plaintiff's car. The complaint was in two counts, one alleging damage of the husband, and the other damages of the wife. The jury found for the City of Tampa as against the husband and for the wife against the City. The judgment for the wife was duly paid and satisfied.
Motion for new trial was filed by the husband, and while the same was pending and more than sixty days after the judgment was entered, he filed notice of appeal.
Florida Appellate Rule 1.3, 31 F.S.A., provides that a judgment is not considered as having been rendered if a timely motion for new trial is filed until said motion is disposed of. However, an appellant who files a notice of appeal before the entry of an order denying his motion for new trial is deemed to have waived or abandoned his own motion and thereby vested jurisdiction in the appellate court. State ex rel. Owens v. Pearson, Fla. 1963, 156 So.2d 4. Bannister v. Hart, Fla.App. 1962, 144 So.2d 853.
Other points raised by the motion require reference to the record on appeal, which is not yet filed in this Court. F.A.R. 3.6, subds. i j(1).
Motion to dismiss denied.
LILES, Acting C.J., and SMITH, SHERMAN N., Jr., and ANDREWS, CHARLES O., Jr., Associate Judges, concur.