Opinion
No. 67-491.
July 25, 1967.
Appeal from the Circuit Court for Dade County, Henry L. Balaban, J.
Preddy, Haddad Kutner and Walter E. Mackoul, Miami, for appellants.
Linet, Schwartz Klein, North Miami Beach, for appellee.
Before CHARLES CARROLL, C.J., and PEARSON and BARKDULL, JJ.
ON MOTION
This appeal is before the Court on appellants' motion pursuant to Rule 5.10, Florida Appellate Rules, 31 F.S.A., to discharge supersedeas bond. The appellants, who were defendants in the trial court, received a jury verdict and final judgment was entered thereon. Thereafter, the trial court on the motion of the plaintiff vacated the final judgment, directed a verdict for the plaintiff on the issue of liability and granted a new trial for the plaintiff on the issue of damages. The defendant brought an appeal pursuant to Florida Statute 59.04, F.S.A. from the order vacating the final judgment and granting a new trial. The trial court immediately set the cause for a new trial. The appellants moved the trial court to stay the new trial on damages pending appeal from the order granting a new trial. The trial court granted a stay, conditioning it upon the filing of a supersedeas bond in the amount of $100.
An appeal from an order granting a new trial is a right given by statute and is therefore not considered interlocutory in nature. It may be noted that a final judgment has been entered and vacated. The filing of the notice of appeal in the appellate court deprives the trial court of further jurisdiction over the subject matter of the appeal. We therefore hold that there was nothing pending in the trial court which could be superseded. See Thursby v. Stewart, 103 Fla. 990, 138 So. 742, 751 (1931); State v. Florida State Turnpike Authority, Fla. 1961, 134 So.2d 12, 15.
The motion to discharge supersedeas is granted and it is so ordered.
I respectfully dissent. An order granting a new trial in a law action is interlocutory, in that rather than to finally dispose of the cause and end the judicial labor therein it leaves the case pending and directs further proceedings designed to lead to and result in a final judgment. It is only by virtue of statute (§ 59.04, Fla. Stat., F.S.A.) that such an order may be appealed. Under Florida Appellate Rule 5.1 which is applicable, the granting of stay of the new trial pending appeal from the order directing it was discretionary and if granted (as the trial court did) was properly conditioned as the rule requires "upon appellant's giving a good and sufficient bond." I can not agree that an appeal from an order granting a new trial in a law action operates to prevent the trial judge from proceeding with a new trial during the period of the appeal, in the absence of a stay order (with bond) as contemplated under Rule 5.1 F.A.R. For those reasons I would deny the appellant's motion.