Opinion
November 14, 1952.
Durand A. Holladay, Miami, for petitioner.
Cushman, Gay Woodard, Miami, for respondent.
This cause is before us upon a petition for a writ of certiorari. Petitioner instituted a suit in chancery in the Circuit Court of the Eleventh Judicial Circuit of Florida in and for Dade County. The purpose of the suit was to foreclose a mechanics' lien for the sum of $520 which petitioner alleged it held against certain real property located in Dade County, Florida, and for the further purpose of recovering upon a contract which it is asserted was entered into between petitioner and respondent wherein and whereby petitioner agreed to furnish and install 15 glass jalousies with screens, hardware, etc., in the building or buildings located on the described real property.
Obviously the only reason for declaring both upon the lien and the contract was to recover an attorney's fee under a provision of the contract which reads:
"If this Contract shall not be paid and is placed with an attorney for collection, Buyer agrees to pay all costs of collection, including reasonable attorney's fees."
Respondent filed a motion to dismiss the complaint and on May 1, 1952, the Chancellor entered an order granting the motion to dismiss as to all portions of the complaint wherein petitioner sought to recover upon the contract attached to the complaint as Exhibit "A" and denied the motion to dismiss as to all portions of said complaint wherein petitioner sought to recover upon its claim of a lien. Petitioner filed an application for a rehearing and on June 7, 1952, the Chancellor denied said petition for rehearing.
It is the order of the Chancellor which was entered on May 1, 1952, which petitioner herein is seeking to have this Court review. Petitioner filed his petition for writ of certiorari in this Court on July 15, 1952, which is more than sixty days from and after the entry of the order sought to be reviewed.
Section 59.08, F.S.A., as amended by Chapter 22854, Laws of Florida, 1945, reads:
"Time for taking appeals or filing petitions for certiorari.
"Appeals, including petitions for review by certiorari, or proceedings in the nature of certiorari, shall be taken or filed within sixty days from and after the entry of the order, decision, judgment, or decree appealed from."
It will be noted that a petition for rehearing was filed in the court below but we have repeatedly held that unless the Chancellor orders a stay of proceedings a petition for a rehearing in a chancery suit does not operate to toll the running of the statutory period of sixty days within which petition for certiorari may be lodged in this Court as provided by Section 59.08, supra. See Equity Rule 71, 31 F.S.A., and Lauderdale By The Sea Development Co. v. Lauderdale Surf and Yacht Estates, Inc., 160 Fla. 929, 37 So. 364, 10 A.L.R.2d 1072. Compare the case of Kent v. Marvin, Fla., 59 So.2d 791.
This petition is one authorized by Supreme Court Rule 34, 30 F.S.A., and is in fact an interlocutory appeal in chancery.
Since it is such a petition and was filed in this Court more than sixty days from and after the entry of the order sought to be reviewed, we are without jurisdiction to entertain it. Consequently, we have determined that we will dismiss the petition for writ of certiorari sua sponte.
Petition for writ of certiorari dismissed.
SEBRING, C.J., MATHEWS, J., and GORDON, Associate Justice, concur.