
    S. L. T. WAREHOUSE COMPANY, a Missouri corporation, Appellant, v. Wilmott WEBB, Individually et al., Appellees.
    No. 73-593.
    District Court of Appeal of Florida, Fourth District.
    March 26, 1974.
    Rehearing Denied May 3, 1974.
    Edna L. Caruso of Howell Kirby, Montgomery D’Aiuto Dean & Hallowes, West Palm Beach, for appellant.
    W. Ford Duane of Robertson Williams, Duane & Lewis, Orlando, for appellees-Webb and Brackney.
    Richard A. Leigh, Orlando, for appellee-Bank.
   ORDER

Ordered that appellant’s Motion to set case for oral argument filed February 21, 1974 is hereby denied, and further,

Ordered sua sponte, that the above-styled case commenced by the filing of a Notice of Appeal on May 10, 1973, in the Circuit Court for Orange County, Florida, in Case No. 70-5707, is hereby dismissed because it is a non-appealable order.

PER CURIAM.

ON PETITION FOR REHEARING

Appellant has filed a petition for rehearing directed to this court’s order dismissing this appeal which involves a plenary appeal from an order dismissing a third party defendant’s counterclaim with prejudice. The main suit and the third party complaint remain pending in the lower court.

Appellant relies upon Duncan v. Pullum, Fla.App. 1967, 198 So.2d 658, and Leeward and Hart Aero. Corporation v. South Central Airlines, Fla.App. 1966, 184 So.2d 454, as authority for the finality and ap-pealability of the order in question. These cases do hold such an order to be appeala-ble. However, this court held in Midstate Hauling Co. v. Liberty Mutual Ins. Co., Fla.App. 1966, 189 So.2d 826, that such an order is not appealable, relying upon Bumby & Stimpson, Inc. v. Peninsular Utilities Corp., Fla.App. 1965, 179 So.2d 414. The Pullum case emanated out of the Second District Court of Appeal, but was not followed by that court in Potts v. Hayden, Fla.App. 1971, 249 So.2d 726, wherein it was held that an appeal would not lie from a final summary judgment on a counterclaim while the main claim between the parties was pending. Since the litigation between the parties is still pending in the trial court and the error vel non of the order in question can be reviewed on appeal from the final judgment, it appears to us the better rule is that laid down in Mid-state Hauling Co. v. Liberty Mutual Ins. Co., supra. Accordingly, we adhere to our order dismissing this cause, and the petition for rehearing is denied.

WALDEN, CROSS and DOWNEY, JJ., concur.  