Bishop v. Chillingworth

• Decision Date: 02 September 1935
• Citation: 120 Fla. 740,163 So. 93
• Parties: BISHOP et al. v. CHILLINGWORTH, Circuit Judge, et al.
• Court: Florida Supreme Court

163 So. 93

120 Fla. 740

BISHOP et al. v. CHILLINGWORTH, Circuit Judge, et al.

Florida Supreme Court

September 2, 1935

En Banc.

Original mandamus proceeding by L. R. Bishop, and others against C. E Chillingworth, as Circuit Judge, and others.

Demurrer to amended alternative writ of mandamus sustained.

BROWN J., dissenting.

COUNSEL W. Terry Gibson, of West Palm Beach, for relators.

C. D Blackwell, of West Palm Beach, for respondents.

OPINION

WHITFIELD Chief Justice.

A demurrer to an alternative writ of mandamus issued by this court was sustained with leave to amend. Bishop v Chillingworth, Circuit Judge, 114 Fla. 286, 154 So. 254, 255.

An amended alternative writ of mandamus was issued here on an amended petition filed.

Matters in pais alleged in the amended alternative writ of mandamus are not authenticated by a bill of exceptions as was held in the former opinion above cited to be necessary in this class of cases where it is sought to require a circuit judge to entertain and adjudicate a motion for new trial which he has stricken on the ground that he had no authority to adjudicate it, because it was 'not duly presented to the Judge within the required time.'

The petition for the amended alternative writ of mandamus contains what is termed a special bill of exceptions taken in the cause in the trial court. It is authenticated by the following, which appears to be in the handwriting of the judge:

'I decline to settle the above proposed bill of exceptions only because I believe I do not at this time have the power to settle it. December 11, 1934.

'C. E. Chillingworth, Circuit Judge.'

In striking the motion for new trial on the ground that it was 'not duly presented to the Judge within the required time,' the court in the same order, dated March 14, 1933, stated that:

'It is further ordered that thirty days be allowed for the purpose of settling such bill of exceptions, if any, as the Court may be authorized to settle.'

It thus appears that though thirty days from March 14, 1933, were allowed for presenting a bill of exceptions, none was presented until December 11, 1934. This explains why the judge indorsed his refusal to settle the 'proposed bill of exceptions' that was presented to him December 11, 1934.

Even if exhibits referred to in the essential allegations of matters in pais contained in the amended petition and alternative writ may be regarded as legally and sufficiently authenticated under section 4634 (2917), C. G. L., for consideration in this proceeding by reason of the indorsement of the judge above quoted, such allegations are insufficient to show error in the action of the circuit judge in striking the motion for new trial.

The statute provides:

'Motions for new trials in civil cases shall be made within four days after the rendition of the verdict and during the same tern, but the judge upon cause shown may within such four days and during the same term by order extend the time for the making and presentation of such motions, not to exceed fifteen days from the rendition of the verdict. In all cases of extension of the time for making such motions, a copy of the motion to be presented to the judge shall be served on the opposite party, or his attorney, with three days' notice of the time and place that the same will be presented and heard.' Section 4498 (2811), C. G. L.

Under this statute, 'in all cases of extension of the time for making such motions [for new trial], a copy of the motion to be presented to the judge shall be served on the opposite party, or his attorney, with three days' notice of the time and place that the same will be presented and heard.' See De Soto Holding Co. v. Boyer, 85 Fla. 517, 97 So. 205; Warner v. Goding, 9§ Fla. 260, 107 So. 406; Citizens' Bank v. Williams, 91 Fla. 589, 110 So. 252; Adams v. Wolf, 103 Fla. 547, 137 So. 705.

It appears that the verdict in the court below was rendered February 9, 1933; that during the same term, on February 13, 1933, the court extended the time to February 20, 1933, to make and present a motion for new trial in the cause; that on March 8, 1933, when the motion for new trial was to be heard, counsel for plaintiffs moved to strike the motion for new trial on grounds among others that the motion was 'not presented within the time fixed' by the order under the statute; whereupon counsel for defendants below filed with the judge an affidavit:

'That on Monday, February 20th, 1933, I appeared before the Honorable C. E. Chillingworth, having with me and in my possession at that time and holding in my hand, Motions in the above entitled cause for a Venire Facias de Novo, Motion for a New Trial and Motion for Arrest of Judgment, and at that time stated to the Court to the best of my recollection and belief the following words, 'Judge, I have here Motions for a New Trial and Venire Facias de Novo and Motion to Arrest Judgment in that ejectment case we tried the other day, and I would like to have an appointment for hearing.' It is my further recollection that during the conversation regarding that appointment, these Motions were laid on the Judge's desk. Upon making the aforesaid request for hearing, I was advised that he was trying cases that week and the following week and that if I would call him later in the week, he would be glad to set a definite date; thereafter I took the said Motions to the Clerk's office where they were filed.

'Subsequently to the best of my knowledge and belief, the following Thursday I again requested the Court for a date of hearing, at which time the said hearing was set...