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Scott-Whitaker Co. v. Joyce Properties, Inc.

SCOTT-WHITAKER COMPANY, Inc., Sonny G. Marden v. JOYCE PROPERTIES, INC., and Lillian Fischer

Scott-Whitaker Co. v. Joyce Props., Inc., 155 So. 2d 661 (Fla. Dist. Ct. App. 1963)
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Court
District Court of Appeal of Florida · State Appellate Courts
Decided
August 13, 1963
Docket
No. 63-250
Judges
Barkdull, Carroll, Horton
Citations
155 So. 2d 661

Opinion of the Court

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PER CURIAM.

This matter is before us on a motion by the appellee to dismiss the appeal. Appel-lees contend the appeal is subject to dismissal because it was filed while a timely petition for rehearing was pending.

A summary final decree adverse to the appellants was rendered April 10, 1963. Two days later, on April 12, appellants filed a petition for rehearing. Three days thereafter, on April IS, appellants filed this appeal. 1

In support of their motion to dismiss the appeal the appellees rely on Seiferth v. Seiferth, Fla.App.1960, 121 So.2d 689 , in which it was held that an appeal by one party was not proper during pendency of a timely petition for rehearing which had been filed by an adverse party. That decision is of no force here, where both the petition for rehearing and the subsequent notice of appeal were filed by the same parties or “side.” In State ex rel. Owens v. Pearson, Fla.1963, 156 So.2d 4 , recently decided by the Supreme Court, it was determined that an appeal filed within the 10-day period allowed for rehearing, but before any petition for rehearing has been filed, will not waive *662 the right to petition for rehearing, and that a timely petition for rehearing by a party will nullify his previously filed appeal. That case is not controlling or applicable here because in the instant case the petition for rehearing was filed first, and the appeal filed thereafter. Therefore, the rule to be applied in this case is that announced in a number of decisions to the effect that the filing of a notice of appeal by a party constitutes an abandonment of his previously filed undisposed of petition for rehearing. See Allen v. Town of Largo, Fla.1949, 39 So.2d 549 ; Frank v. Pioneer Metals, Inc., Fla.App.1959, 114 So.2d 329 ; Seiferth v. Seiferth, supra; Chambers v. Chambers, Fla.App. 1962, 143 So.2d 656 .

For the reasons stated, the motion to dismiss the appeal should be and hereby is denied.

It is so ordered.

. Notwithstanding the filing of the appeal, the chancellor thereafter heard and denied the petition for rehearing, on April 19, 1963.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1969: 11977: 11981: 11983: 219692026peak 1983 · 2

Relies on it most ⓘ

  1. Coeur D'Alene Turf Club, Inc. v. Cogswell461 P.2d 107 (Idaho 1969)
  2. Kasper Instruments, Inc. v. Maurice394 So. 2d 1125 (Fla. Dist. Ct. App. 1981)
  3. Financial Marketing Group, Inc. v. STATE, DEPT. OF BANKING AND FINANCE352 So. 2d 524 (Fla. Dist. Ct. App. 1977)
  4. Bruenn v. Great Adventure, Inc.432 So. 2d 785 (Fla. Dist. Ct. App. 1983)
  5. Marban v. Metro-Dade Police Department436 So. 2d 1087 (Fla. Dist. Ct. App. 1983)

Most recent

  1. Marban v. Metro-Dade Police Department436 So. 2d 1087 (Fla. Dist. Ct. App. 1983)
  2. Bruenn v. Great Adventure, Inc.432 So. 2d 785 (Fla. Dist. Ct. App. 1983)
  3. Kasper Instruments, Inc. v. Maurice394 So. 2d 1125 (Fla. Dist. Ct. App. 1981)
  4. Financial Marketing Group, Inc. v. STATE, DEPT. OF BANKING AND FINANCE352 So. 2d 524 (Fla. Dist. Ct. App. 1977)
  5. Coeur D'Alene Turf Club, Inc. v. Cogswell461 P.2d 107 (Idaho 1969)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 5

DepthCaseCited by
Seiferth v. Seiferth, 121 So. 2d 689 (Fla. Dist. Ct. App. 1960) 10
State ex rel. Owens v. Pearson, 156 So. 2d 4 (Fla. 1963) 42
Allen v. Town of Largo, 39 So. 2d 549 (Fla. 1949) 22
Frank v. Pioneer Metals, Inc., 114 So. 2d 329 (Fla. Dist. Ct. App. 1959) 10
Chambers v. Chambers, 143 So. 2d 656 (Fla. Dist. Ct. App. 1962) 3

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