McKell v. Jackson , 107 Fla. 668 ( 1933 )

ON MOTION TO DISMISS THE APPEAL. This is an appeal from an order in chancery granting a rehearing after final decree. Appellee has moved to dismiss the appeal on the ground that an order granting a rehearing is not such an interlocutory order as is appealable under the statute. Section 4961 C. G. L., 3169 R. G. S.

Section 4958 C. G. L., 3166 R. G. S., provides that after a rehearing shall have been granted, no further or other proceedings shall be had or taken on the decree pronounced on the original hearing of the cause. Under this statute the effect of an order granting a rehearing is different from that of an order denying a rehearing. Therefore, the party whose final decree has been, in effect, abrogated by an order granting a rehearing is in a different situation from one whose petition for rehearing has been denied, as was the case dealt with in Gasque vs. Ball, 71 Fla. 257, 71 Sou. Rep. 329.

Our conclusion is that an order granting a rehearing after final decree in an equity cause is appealable under Sec. 4961 C. G. L., 3169 R. G. S., whether the final decree is appealed from or not.

Motion to dismiss appeal denied.

BUFORD, C.J., AND WHITFIELD, TERRELL AND DAVIS, J.J., concur.