Opinion
No. I-177.
January 31, 1967.
Appeal from the Circuit Court, Marion County, D.R. Smith, J.
Pattillo, MacKay, McKeever, Ocala, for appellant.
Willard Ayres, Ocala, for appellee.
ON MOTION TO DISMISS
Camp Phosphate Company by this interlocutory appeal seeks review of an order of taking entered in an eminent domain proceeding. Appellee Marion County has moved to dismiss upon the following grounds, viz.: 1. That said order is not final, and does not relate to venue or jurisdiction over the person of defendant-appellee, and 2. That this interlocutory appeal is frivolous. The third ground alleged relates to the merits of the cause which we need not explore here.
In Wilson v. Jacksonville Expressway, 110 So.2d 707 (1959), this court held that an order of taking entered in an eminent domain proceeding pursuant to statutory authority is an action at law, and an interlocutory appeal therefrom is not available other than from questions concerning venue or jurisdiction over the person. We adhere to that decision in every respect. However, here, Appellant in its brief and by oral argument has urged this court to treat the appeal as a petition for writ of certiorari in the event we hold that same was improvidently taken. We so hold.
Since we find that a justiciable issue meriting immediate review has been shown, we exercise our discretion by treating the instant interlocutory appeal as a petition for writ of certiorari. See Section 59.45, Florida Statutes, F.S.A., and Couse v. Canal Authority, January 31, 1967, 194 So.2d 301.
From an examination of the record we conclude that the second and third grounds of defendant's motion are without merit.
The motion to dismiss is denied.
RAWLS, C.J., and CARROLL, DONALD K., and JOHNSON, JJ., concur.