S. L. MATTAIR AND J. B. MATTAIR, HER HUSBAND, APPELLANTS,
v.
LEOPOLD FURCHGOTT, TRADING UNDER THE FIRM NAME AND STYLE OF KOHN, FURCHGOTT & CO., APPELLEE
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The Florida Supreme Court dismissed an appeal from interlocutory decrees in an equity action because the appeal was not timely filed and the order complained of in the second assignment of error was not included in the transcript of record.
The court dismissed the appeal because: (1) the appeal from the January 30, 1896 demurrer ruling was untimely, having been filed more than six months after the interlocutory order; and (2) the April 4, 1896 pro confesso order was not exhibited in the transcript of record, depriving the court of jurisdiction to review it.
“As the appeal is not from a final decree and was not entered within six months after the entry of the interlocutory order of January 30, 1896, overruling the demurrer, the propriety of such order can not be considered on this appeal.”
Establishes the rule that interlocutory appeals must be timely filed within six months to be reviewable.
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Join FLexlaw to unlock all legal intelligenceS. L. Mattair and J. B. Mattair (her husband) appealed from two interlocutory decrees entered in an equity case: one overruling their demurrer to the …
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Per Curiam.
This cause was referred by the court to two of its commissioners, Messrs. Maxwell and Glen for investigation, who report the cause for disposition as hereinafter stated.
The appeal was entered October 1st, 1896, and purports to have been taken from two interlocutory decrees, one overruling appellants d'emurrer to the bill of complaint, on thirtieth January, 1896, the other granting a decree pro eonfesso against appellants April 4, 1896.
The two assignments of error complain that the court erred in entering the two interlocutory decrees mentioned. As the appeal is not from a final decree and was not en tered within six months after the entry of the interlocutory order of January 80, 1806, overruling the demurrer, the propriety of such order can not be considered on this appeal. Jacksonville, M. & P. Ry. & Nav. Co. v. Broughton, 38 Fla. 139, 20 South. Rep. 829; Ray v. Frank, decided at this term.
The abstract filed March 13, 1897, not excepted to, shows that the court granted an order dated April 4, 1896, that the bill be taken as confessed against appellants for failure to plead, but upon inspection of the transcript of the record,, we fail to find that any such order was ever made by the court. This court has no jurisdiction to review an order appealed from unless that order be exhibited to it in the transcript. Jacksonville, T. & K. W. Ry. Co. v. Boy, 34 Fla. 389, 16 South. Rep. 290. As we must be governed by the transcript and not by the abstract in determining our jurisdiction, and the transcript fails to embrace the order complained of by this the second assignment of error, and the first assignment can not be considered for reasons stated, the appeal must be dismissed. Accordingly the appeal is dismissed at the cost of appellants.
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Ellis v. State, 100 Fla. 27 (Fla. 1930)…R. 172, the point was not involved. The judgment of conviction was reversed because the record proper showed the “plaintiff in error has been tried and found guilty of murder without being personally present at the trial.” In Mattair v. Furchgott, 44 Fla. 620, 32 So. R. 925, the order appealed from did not appear in the record so the appeal was dismissed on authority of Jacksonville, T. & K. W. Ry Co. v. Boy, supra. The Attorney General states in the brief filed in behalf ot the State that it “must be c…
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Futch v. Adams, 47 Fla. 257 (Fla. 1904)…ealing to have reviewed the propriety of the decree entered within six months prior to the entry of appeal, but not those entered more than six months prior to the entry of appeal. Ray v. Frank, 44 Fla. 681, 32 South. Rep. 925; Mattair v. Furchgott, 44 Fla. 620, 32 South. Rep. 925; Steinberg v. Richbourg, 45 Fla. 589, 33 South. Rep. 521. The orders sustaining the demurrer to the original hill and denying the petition for a rehearing having been entered more than six months prior to the entry of the appeal…
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Mitchell v. Mason, 61 Fla. 692 (Fla. 1911)…fore, be considered, more than six months having elapsed between the entry of said order and the appeal therefrom. Futch v. Adams Bros., 47 Fla. 257, 36 [*694] South. Rep. 575; Dekle v. Barkley, 48 Fla. 250, 37 South. Rep. 581; Mattair v. Furchgott, 44 Fla. 620, 32 South. Rep. 925; Ray v. Frank, 44 Fla. 681, 32 South. Rep. 925; Steinburg. v. Richbourg, 45 Fla. 589, 33 South. Rep. 521. In the order overruling the demurrer to the bill, the court granted leave to the defendant until the rule day in November,…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jacksonville v. Antone Boy, 34 Fla. 389 (Fla. 1894)
- Jacksonville v. Broughton, 38 Fla. 139 (Fla. 1896)