
    HINES TRUCK STOP, INC., Appellant, v. CAPE FEAR MOTOR LINES, INC., a North Carolina corporation, Great Dane Trailers, Inc., and Edward Stack, as Sheriff of Broward County, Florida, Appellees.
    No. 70-144.
    District Court of Appeal of Florida, Fourth District.
    Oct. 23, 1970.
    Rehearing Denied Jan. 22, 1971.
    Norman D. Zimmerman, Pompano Beach, for appellant.
    James E. Tribble, of Blackwell, Walker & Gray, Miami, for Great Dane.
   PER CURIAM.

Appellant, Hines Truck Stop, Inc., appeals a summary final judgment entered in favor of the appellee, Great Dane Trailers, Inc., in an action of replevin to recover possession of a trailer. We reverse.

We do so because we find disputed issues of critical fact as to the validity of Great Dane Trailers’ Inc., retained title contract against the trailer in question. This issue was not decided in the prior order of the court which instructed the sheriff to sell the trailer subject to appellee’s lien. Such circumstances bar the use of summary judgment procedure. Holl v. Talcott, Fla.1966, 191 So.2d 40; Brinkley v. Freedom National Bank of New York, Fla.App.1968, 210 So.2d 465.

Reversed and remanded.

CROSS, C. J., and McCAIN, J., concur.

WALDEN, J., dissents, with opinion.

WALDEN, Judge

(dissenting).

I would affirm because the appellant failed to properly bring to this court the whole record used by the trial court in making the contested ruling. Geiger v. City of Leesburg, Fla.App. 1966, 186 So.2d 260. The appellant is further precluded from obtaining appellate relief by its failure to assign as error the trial court order of October 22, 1969, which order established the amount and validity of the lien claimed by Great Dane.

Finding no error demonstrated and no worthwhile purpose to be served by a remand, I do respectfully dissent.  