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BECK v. LITTLEFIELD

Supreme Court of Florida, Division B
May 7, 1953
65 So. 2d 722 (Fla. 1953)

Summary

In Beck v. Littlefield, Fla. 1953, 65 So.2d 722, we stated that where an equity decree grants no affirmative relief so that there are no proceedings for a stay order to operate upon, there is nothing to stay and the timely filing of a petition for rehearing tolls the time within which appeal may be taken.

Summary of this case from Ganzer v. Ganzer

Opinion

March 24, 1953. Rehearing Denied May 7, 1953.

Cobb Cole and Leon F. Stewart, Daytona Beach, for appellants.

Horn Ossinsky and Alex D. Littlefield, Jr., Daytona Beach, for appellees.


On appellees' motion to dismiss this appeal, the sole question presented is whether a petition for rehearing to review a final decree which grants no affirmative relief will operate to toll the running of the statutory time in which to file an appeal from such final decree. This question must be answered in the affirmative, under the authority of Dade County v. Snyder, 134 Fla. 756, 184 So. 489; O'Steen v. Thomas, 146 Fla. 73, 200 So. 230; and Hollywood, Inc., v. Clark, 153 Fla. 501, 15 So.2d 175, 183.

The cases of Lauderdale by the Sea Development Co. v. Lauderdale Surf Yacht Estates, Inc., 160 Fla. 929, 37 So.2d 364, 10 A.L.R.2d 1072, and Wolf v. Cleveland Electric Co., Inc., Fla., 58 So.2d 153, relied upon by appellees' in support of their motion to dismiss, are not authoritative here. In the Lauderdale by the Sea case, affirmative relief was granted by the decree appealed from, so that, in the absence of a stay order, the statutory appeal period began to run from the date of its entry. In the Wolf case, a petition for rehearing was filed in a common-law action; and, as pointed out by Mr. Justice Hobson in Kent v. Marvin, Fla., 59 So.2d 791, 792, "since there is no provision for the filing of a petition for rehearing in a common-law action, and in view of the fact that said ill-begotten petition cannot be treated as a motion for a new trial, there was actually nothing before the lower court and nothing to be brought before this Court except the final judgment entered November 24, 1950."

The correct rule is, then, as stated in Hollywood, Inc., v. Clark, supra [ 153 Fla. 501, 15 So.2d 183], that "where the court's decree grants no affirmative relief and is self-executing and there are no proceedings for a stay order to operate upon, there is manifestly nothing to stay, and the timely filing and presentation of a petition for rehearing under section 70 of the same act, § 63.70, Fla.Statutes, F.S.A. [now superseded by Florida Equity Rule 70, 31 F.S.A., which is identical thereto] suspends the final decree until the petition is disposed of."

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

Denied.

THOMAS, HOBSON, and DREW, JJ., concur.


Summaries of

BECK v. LITTLEFIELD

Supreme Court of Florida, Division B
May 7, 1953
65 So. 2d 722 (Fla. 1953)

In Beck v. Littlefield, Fla. 1953, 65 So.2d 722, we stated that where an equity decree grants no affirmative relief so that there are no proceedings for a stay order to operate upon, there is nothing to stay and the timely filing of a petition for rehearing tolls the time within which appeal may be taken.

Summary of this case from Ganzer v. Ganzer
Case details for

BECK v. LITTLEFIELD

Case Details

Full title:BECK ET AL. v. LITTLEFIELD ET AL

Court:Supreme Court of Florida, Division B

Date published: May 7, 1953

Citations

65 So. 2d 722 (Fla. 1953)

Citing Cases

Ganzer v. Ganzer

Appellant asserts that the pendency of her petition for rehearing tolled the time within which an appeal…