(concurring specially).
I concur in the opinion by Mr. Justice TERRELL.
However, I think it might be susceptible of the interpretation that we are receding from the rule heretofore followed by this court that, in equity, where affirmative relief is granted by the decree appealed from, the filing of a petition for rehearing does not toll the running of the appeal period unless a stay order is obtained from the trial court. Lauderdale By The Sea Development Co. v. Lauderdale Surf and Yacht Estates, 160 Fla. 929, 37 So.2d 364, 10 A.L.R.2d 1072.
It affirmatively appears from the record in this case that, even though no formal order to that effect was entered by the lower court, it did in fact grant a rehearing in the case and considered newly discovered evidence upon the petition of the appellant, Halberstadt. It was undoubtedly for that reason that this court denied the motion of the appellee to strike the assignments of error relied on by appellant to overturn the final decree here reviewed— *813and which order of denial is new the law of this case.
We are not, therefore, receding from our former opinions respecting the rule stated in the first paragraph of this memorandum. But I believe it should be so stated in the opinion.
TERRELL and MATHEWS, JJ., and MILLEDGE, Associate Justice, concur.