This cause is before us on a suggestion for writ of prohibition by which petitioners seek to prohibit the District Court of Appeal, Third District, from entertaining appellate proceedings in this cause. Petitioners say that respondent, appellate court, in denying their motion to dismiss the appeal sub judice acted beyond and in excess of its constitutionally conferred jurisdiction.
Respondent, Canty, the plaintiff in the trial court, filed a notice of appeal to the District Court of Appeal, Third District, to review an order granting a new trial upon his failure to file a remittitur. Petitioners filed a motion to dismiss the appeal on the ground that Fla.Stat. § 59.04, F.S.A., which purports to authorize appeals from orders granting new trials in civil cases, is unconstitutional and, therefore, the District Court of Appeal was without jurisdiction to entertain the appeal. The District Court of Appeal denied the motion to dismiss the appeal and thereby held that an appeal would lie from the order granting a new trial.
Petitioners rely on the case of Clement v. Aztec Sales, Inc., 283 So.2d 68 (Fla. App. 4th, 1973), which held that Fla.Stat. § 59.04, F.S.A., was unconstitutional and that an appeal does not lie from an order granting a new trial. This decision has since been reversed.
We held in Clement v. Aztec Sales, Inc., Case No. 44,305, 297 So.2d 1, opinion filed June 19, 1974, that Fla. Stat. § 59.04, F.S.A., authorizes an appeal from an order granting a new trial. Therefore, in the case sub judice, the District Court of Appeal acted well within its jurisdiction in denying petitioners’ motion to dismiss the appeal.
Petitioners’ suggestion for writ of prohibition is hereby denied.
Additionally, petitioners have requested that we treat their suggestion for writ of prohibition, if such writ does not lie, as a petition for writ of certiorari, citing the decision of the District Court of Appeal, Fourth District, in Clement v. Aztec Sales, Inc., supra, for conflict. In our reversing that decision in Clement v. Aztec Sales, Inc., Case No. 44,305, 297 So.2d 1, opinion filed June 19, 1974, there is presently no conflict and petitioners’ petition for writ of Certiorari is, therefore, denied.
It is so ordered.
ROBERTS, ERVIN, DEKLE and OVERTON, JJ„ concur.