Opinion
No. 69-685.
March 31, 1970.
Appeal from the Circuit Court, Dade County, Harvie S. DuVal, J.
Kates Ress, Robert P. Barnett, Michael A. Berke, North Miami, for appellants.
Walton, Lantaff, Schroeder, Carson Wahl, and George E. Orr, Miami, for appellee.
Before PEARSON, C.J., and BARKDULL and HENDRY, JJ.
This appeal was improvidently taken from an interlocutory order in an action formerly cognizable at law. We have elected to treat the appeal as a petition for certiorari. See Lovi v. North Shore Bank, Fla.App. 1962, 137 So.2d 585; Aetna Insurance Company v. Jordan, Fla. App. 1966, 189 So.2d 408.
The order presented for review denied the plaintiffs' motion to join an insurance company after the decision of the Supreme Court of Florida in Shingleton v. Bussey, Fla. 1969, 223 So.2d 713. We think that under the established law this order was a departure from the essential requirements of the law. See Beta Eta House Corporation v. Gregory, Fla.App. 1970, 230 So.2d 495; Shipman v. Kinderman, First District Court of Appeal, 232 So.2d 21; Sherman v. Holzapfel, Second District Court of Appeal, 231 So.2d 550.
The order denying plaintiffs' motion to amend the complaint is reversed with directions to allow the amendment.
I respectfully dissent from the majority opinion. The appeal papers presented to this court are void of any indication that State Farm Mutual Automobile Insurance Company is in any way related to the case in the trial court, i.e., there is no showing that one of their insureds is involved in the instant proceedings. Therefore, I fail to see how the trial judge could have departed from the essential requirements of the law in denying the motion to amend the complaint.
I would refuse to consider the interlocutory appeal as certiorari and dismiss the notice of appeal as being from a non-appealable order.