Opinion
Opinion Filed January 26, 1940
An appeal from the Circuit Court for Dade County, Arthur Gomez, Judge.
R.E. Kunkel and Kunkel White, for Appellant;
A.C. Franks, for Appellee.
This cause is before us on motion to dismiss the appeal principally on the ground that the appeal was taken under the provisions of Sec. 4961 C. G. L. and in violation of Rule 34 of this Court which became effective May 1, 1939.
The motion to dismiss was not timely made but such motion was presented here after this Court had assumed jurisdiction by making an order of reference to the Honorable Arthur Gomez, Judge of the Eleventh Judicial Circuit of Florida, to take testimony and report in connection with a motion previously made to this Court to order the payment of alimony pendente lite and solicitor's fees for representing the appellee here, which order was made on the application of the appellee.
It, therefore, appears that appellee had invoked the jurisdiction of this Court under the appeal entered.
Rule 34, supra, does not affect the jurisdiction of this Court to dispose of the merits of a question based on an interlocutory order when such question is presented by direct appeal instead of being presented as is required by Rule 34.
Rule 34 was designed to facilitate the disposition of the review of interlocutory orders and not for the purpose of depriving litigants of the right to have such orders reviewed.
The rule does not abrogate the provisions of Sec. 4961 C. G. L., but prescribes the orderly method by which the right to review such orders may be accomplished.
If the motion of appellee to dismiss had been timely made and at a time before the jurisdiction of this Court had been exercised at the bequest of the appellee, we would have been justified in granting the motion under Rule 34, but under the peculiar factual conditions as above outlined, we feel that we should continue the exercise of the jurisdiction which we have heretofore assumed and deny the motion.
It is so ordered.
Motion denied.
TERRELL, C. J., and BUFORD and THOMAS, J. J., concur.
WHITFIELD, J., concurs in opinion and judgment.
Justices BROWN and CHAPMAN not participating as authorized by Section 4687, Compiled General Laws of 1927 and Rule 21-A of the Rules of this Court.