Watt v. Bill Branch Chevrolet, Inc.

Full title: ROBERT T. WATT, APPELLANT, v. BILL BRANCH CHEVROLET, INC., APPELLEE

Court: District Court of Appeal of Florida, Second District

Date published: Apr 3, 1974

292 So. 2d 56 (Fla. Dist. Ct. App. 1974)

Opinion

No. 73-1083.

March 13, 1974. Rehearing Denied April 3, 1974.

Appeal from the Circuit Court, Lee County, Thomas W. Shands, J.

Harry A. Blair, Fort Myers, for appellant.

Hugh E. Starnes, Fort Myers, for appellee.

The attorney for Appellee having filed a Motion to Dismiss the above styled appeal as taken from a nonappealable interlocutory order and the attorney for Appellant having agreed thereto, upon consideration, it is

Ordered that the said Motion be and the same is hereby granted and the appeal in this cause commenced by Notice of Appeal filed in the Circuit Court for Lee County, Florida, on December 27, 1973, be and the same is hereby dismissed.

The record on appeal, including the briefs, will be kept in the closed case file and, in the event a new and proper appeal is filed, the parties may request that all or part of the record or briefs be used in the new appeal.

ORDER DENYING REHEARING

MANN, Chief Judge.

We granted a motion to dismiss an appeal improvidently taken from an order of the Circuit Court dismissing a counterclaim within the Circuit Court's jurisdiction but brought in an action originally filed in the County Court for a sum lower than the Circuit Court's jurisdiction. We are now asked to reconsider our action because the appellant fears that his right to appeal will be lost. We decline to do so. His right of appeal is preserved in any case by the Florida Constitution, Article V, §§ 3, 4, 5, F.S.A.

The appellant states that confusion exists now because the Circuit Court has transferred the cause back to the County Court, leaving an appeal to be taken to the Circuit Court eventually which would submit the question which he brought here to the very court which decided it. Having once entertained jurisdiction on a good faith claim which causes the action to be transferred to the Circuit Court, that court should have retained jurisdiction. National Juice Corporation v. Gilligan, Fla. 1953, 63 So.2d 914; Rule 1.170(j) Fla.R.Civ.P., 30 F.S.A. Our action is without prejudice to further proceedings in the light of this opinion.

The appeal will stand dismissed and the petition for rehearing is denied.

BOARDMAN and GRIMES, JJ., concur.