Opinion
No. 1686.
February 12, 1960.
Appeal from the Circuit Court of Lake County, T.G. Futch, J.
Ernest D. Jackson, Sr., Jacksonville, for petitioners.
Harry E. Gaylord, Eustis, for respondent.
An appeal was filed from the Probate Court of Lake County to the Circuit Court of said county. An order was entered dismissing the appeal from an order of the Probate Court and also an order was entered denying the motion of the petitioners in the Circuit Court to transfer the appeal and the record to the District Court of Appeal, Second District, which, under the Constitution of Florida, Const. art. 5, § 5, F.S.A., is the proper court for said appeal to be taken.
This court, in the cases of Appeal of Syracuse University, Fla. 1958, 105 So.2d 904; and In re Juen's Estate, Fla. 1958, 105 So.2d 908, held that since the effective date of Article V of the Florida Constitution, appeals in probate should be taken to this court instead of the Circuit Court.
The Florida Appellate Rule 2.1, subd. a (5) (d), 31 F.S.A. provides that when the jurisdiction of an appellate court has been improvidently invoked, that court may of its own motion or on motion of either party to the cause enter an order transferring it to the court having jurisdiction.
Rule 1.1 of the Florida Appellate Rules provides:
"These rules are adopted pursuant to the constitutional and inherent powers of the Supreme Court of Florida. From their effective date they shall govern all proceedings in the Supreme Court, the district courts of appeal, and the circuit courts in the exercise of their appellate jurisdiction. All rules shall apply equally to all such courts unless specifically limited to one court."
Where an appeal is improvidently taken to the Circuit Court when it should have been appealed to either the District Court of Appeal or to the Supreme Court, the Circuit Court has authority under the Florida Appellate Rules to transfer the appeal and the record to the court to which it should have been appealed in the first instance.
Certiorari is granted and the order of the circuit judge dismissing the appeal and the order of the court refusing to transfer the appeal and the record in this case to the Second District Court of Appeal are quashed with directions to the lower court to enter an order transferring the appeal and the record in this case to the District Court of Appeal, Second District, at Lakeland, Florida.
ALLEN, C.J., and KANNER and SHANNON, JJ., concur.