Opinion
No. 3118.
October 12, 1962. Rehearing Denied November 14, 1962.
Appeal from the Circuit Court, Seminole County, Volie A. Williams, Jr., J.
Dominick J. Salfi of the Law Offices of J. Russell Hornsby, Orlando, for appellants.
Robert G. Murrell of Sam E. Murrell Sons, Orlando, for appellee.
The appellants, defendants below, seek reversal by interlocutory appeal of an order setting aside on rehearing a summary final decree previously entered for said defendants. We are not authorized to review the order appealed. In order to determine the correctness of the order on the petition for rehearing, this court would be required to consider the final decree and the record on which it was predicated. We have previously held that this cannot be done. See Taborsky v. Mathews, Fla.App. 1962, 137 So.2d 880; McNary v. Hudson, Fla. App. 1959, 110 So.2d 73.
The decree sought to be appealed is neither a final decree nor an appealable interlocutory order. This appeal accordingly is dismissed ex mero motu.
KANNER, Acting C.J., and WHITE and SMITH, JJ., concur.
ON PETITION FOR REHEARING
We have heretofore dismissed this appeal on the ground that the decree sought to be reviewed was not appealable. In a petition for rehearing the appellants submit that the holding in McKell v. Jackson, 1933, 107 Fla. 668, 145 So. 418, authorizes the appeal.
During the interim since McKell v. Jackson considerable changes have been wrought by statutory revision and the advent of the rules governing trial procedure and appellate review in Florida. In McKell v. Jackson the appellee moved to dismiss on the ground that the subject order was not appealable. The court allowed the appeal to stand in view of § 4961, C.G.L. of 1927, which was carried over and compiled as Fla. Stat. § 67.02, F.S.A. In 1945 Fla. Stat. § 67.02, F.S.A. was consolidated with Fla. Stat. § 59.02, F.S.A., but § 67.02, as it formerly existed, was subsequently abrogated in the revision of the statutes and the adoption of the rules. Authority for appealing the decree involved in the present case is not found in Appellate Rule 4.2, 31 F.S.A. relating to interlocutory appeals.
As it existed in March 1962 when the instant notice of appeal was filed.
Petition denied.
KANNER, Acting C.J., WHITE and SMITH, JJ., concur.