Florida District Courts of Appeal, 1972

Estate of Brameister v. Brameister

Estate of Brameister v. Brameister
Florida District Courts of Appeal · Decided December 20, 1972 · Liles, Mann, Pierce
270 So. 2d 749 (Southern Reporter, Second Series)

Estate of Brameister v. Brameister

Opinion of the Court

MANN, Judge.

Rule 4.2(a), Florida Appellate Rules, 32 F.S.A., allows the appellant to bring this interlocutory appeal from an order denying a motion to dismiss the appellee’s motion to vacate a final judgment two years after its entry on the ground of “clerical” error. Fla.R.Civ.P. 1.540(a); Cf. Rules 1.530, 1.-540(b), 31 F.S.A. Rule 4.2(f), F.A.R., provides that “The appellate court may reserve ruling until final disposition of the cause by the lower court.” We think the invocation of this rule would conduce to the orderly consideration of whatever evidence the ap-pellee may adduce to show that the error is indeed “clerical,” rather than judicial error reachable by appeal. We withhold ruling until at least the stage at which the parties have an opportunity to move for summary judgment, if the facts are undisputed, or until final hearing, if factual dispute is shown to exist.

Remanded for further proceedings.

PIERCE, C. J., and LILES, J., concur.

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