James H. Stanley and Raymie B. Stanley, His Wife, Appellants, v. Standard Cypress Company, a Corporation, Appellee, 54 Fla. 583

Per Curiam. — This cause came' on to be heard upon motion of the appellee to dismiss the appeal taken herein. There are two entries of appeal in the cause, the first entered on the 29th day of August, 1907, returnable to the first day of the January term 1908, the second entered on the 26th day of September, 1907 and made returnable on the 28th day of November, 1907. The appellee’s motion is to dismiss this last appeal entered on September 26th, 1907, upon the ground that at the time of its entry there was already pending another, appeal ’ in the same cause and from- the same order therein. Under the provisions of

Chapter 5638 statute laws of 1907, the first of the above attempts at an appeal entered on August 29th, 1907, and made returnable to the first day of the January term 1908 was a nullity because said statute required all appeals to be made returnable to' a day more than thirty, but not more than ninety, days from the date of their entry. The first appeal being a nullity did not stand in the way of the entry of a proper appeal made properly returnable. Parker v. Evening News Pub. Co. 54 Fla. 544, 44 South. Rep. 718.

The motion to dismiss upon the grounds made, cannot, therefore, be granted; but the court upon inspection of the transcript for the purposes of said motion, finds that there was a -final decree entered in said cause on the 21st day of August, 1907, from which no appeal has been taken, the said entry of appeal made on September 26th, 1907 and made returnable to the 28th day of November, 1907, being.in express terms confined to an interlocutory order in the case overruling a plea of the defendant to the bill of complaint.

Under the repeated rulings of this court an appeal taken solely and expressly from an interlocutory order in a cause in equity, subsequently to the rendition of a final decree in the cause, that -does not bring up such final decree for review, cannot be considered here, and such an appeal will be dismissed. Stockton v. Harmon, 32 Fla. 312, 13 South. Rep. 833; Burnham v. Driggers, 44 Fla. 168, 32 South. Rep. 796; Wilder v. Dunne, 45 Fla. 662, 33 South. Rep. 508. Following this rule the said appeal in said cause must, therefore, be, and the same is hereby, dismissed, at the cost of the appellants. All concur.