De Bowes v. De Bowes
| Decision Date | 20 February 1942 |
| Citation | 149 Fla. 545,7 So.2d 4 |
| Parties | DE BOWES v. DE BOWES. |
| Court | Florida Supreme Court |
Rehearing Dened March 20, 1942.
Appeal from Circuit Court, Dade County; Stanley Milledge judge.
H. H. Taylor, of Miami, and Tiffany Turnbull, Jr., of Tallahassee, for appellant.
Carl T. Hoffman, L L. Robinson, and A. A. Ross, all of Miami, for appellee.
A motion is made to dismiss an appeal taken November 26, 1941, from an amended final decree entered May 27, 1941, and from a decree entered April 12, 1941. In substance the contention is that the appeal was not taken in accordance with the requirements of Chapter 20441, Acts of 1941, which is as follows:
'An Act Relating To and Affecting the Time Within Which Writs of Error Shall Be Sued Out in Actions at Law or Appeals Taken in Suits in Chancery; To Repeal Certain Statutes Relating Thereto, and Certain Statutes Saving the Time Therefor in Favor of Infants and Married Women; and To Fix the Effective Date Hereof.
'Be It Enacted by the Legislature of the State of Florida:
'Approved by the Governor May 23, 1941.
'Filed in Office Secretary of State May 23, 1941.'
Section 5, Article V, of the constitution provides:
'The Supreme Court shall have appellate jurisdiction in all cases at law and in equity originating in Circuit Courts.'
The time and manner in which appellate proceedings may be invoked are subject to statutory regulation when the right to appeal is not thereby unduly restricted. State v. City of Coral Gables, 101 Fla. 237, 133 So. 892.
Statutes regulating the right of appeal should be liberally interpreted to preserve the right to appeal and in furtherence of justice. See Price v. Horton, 76 Fla. 537, 80 So. 305. See, also, section 4, Declaration of Rights, Florida constitution.
Parties to a suit have a right to require the due observance of statutory regulations of the manner in which appeals may be made effective. Provident S. B. & T. Co. v. Devito, 98 Fla. 1076, 125 So. 235.
In Spencer v. McBride, 14 Fla. 403, the statute limited the time in which actions may be brought in trial courts on existing causes of action. The decision was rendered in 1874 before the adoption of the constitution of 1885 which contains the following as section 33 of Article III:
'No statute shall be passed lessening the time within which a civil action may be commenced on any cause of action existing at the time of its passage.'
In consequence of the quoted organic provision the decision in the McBride case is not controlling in original actions brought in trial courts; and all of the principles announced in the opinion in the McBride case that may conflict with the organic section, e. g. headnote No. 4, are not necessarily applicable when interpreting statutes limiting the time for taking appeals.
Each statute should be interpreted with reference to controlling law, to the terms and intendments of the statute and to the object designed by the enactment. When not controlled by organic law, statutes limiting the time for taking appeals should be interpreted to afford a reasonable time for taking appeals to all parties having a right of appeal whether the judgments, decrees or orders to be appealed from were rendered or entered before or after the statute is enacted or becomes effective under section 18, Article III, of the constitution. See In re Estate of Ollie M. Woods, 133 Fla. 730, 183 So. 10, 117 A.L.R. 1202.
In Sammis v. Bennett, 32 Fla. 458, 14 So. 90, 22 L.R.A. 48, Chapter 4130, Acts of 1893, limiting the time for taking chancery appeals to six months, did not expressly repeal the prior statute allowing such appeals to be taken within two years, and under the constitution the effective date of Chapter 4130 was August 1, 1893, sixty days after the final adjournment of the legislature on June 2, 1893. This court held Chapter 4130 to be applicable only to appeals from orders and decrees entered after the effective date of the statute under the constitution, the statute not making its effective date later than sixty days after the final adjournment of the legislature, as was done by Chapter 20441, Acts of 1941, in this case, which though approved by the Governor and becoming a law May 23, 1941, did not take effect or become operative till noon October 1, 1941, as expressly provided in Chapter 20441, which Chapter also expressly repealed identified prior laws on the subject upon becoming effective October 1, 1941.
The brief of counsel for the motion to dismiss contains the following:
'We submit that:
'1. The new act is retrospective, and such was the purpose of postponing its effectiveness until October 1, 1941, otherwise Section 3 of the Act is meaningless and purposeless.
'2. That all appeals from decrees more than sixty days old must be taken before October 1, 1941 (noon).
'3. That after October 1, 1941 (noon) appeals may be taken only from decrees not more than sixty days old at time of entry of appeal regardless of date of entry. For example: a decree of August 3, 1941, can be appealed up to October 2, 1941, and a decree of September 30, 1941, can be appealed up to November 29, 1941, and decrees dated October 1, 1941, (noon) have the sixty days thereafter for appeal.
'4. Stated another way: appeals taken after October 1, 1941, come under the 1941 Act, and must be from decrees not more than sixty days old ('sixty days from date of entry'); and appeals taken before October 1 come under the 1893 Act, and may be from and decrees entered between April 2, 1941, and October 1, 1941. This is true, for the repeal clause (Sec. 2 of 1941 Act) makes us operate under the 1893 Act before October 1, 1941, and under the 1941 Act after October 1, 1941.'
The manifest intent of Chapter 20441, Acts of 1941, is to provide that where a judgment is rendered or a decree or order is entered after noon on October 1, 1941, all appeals from any such judgments, decrees or orders shall be sued out and taken within sixty days from the date of the judgment or from the entry of orders or decrees appealed from; and that when such a judgment, order or decree is rendered or entered before noon of October 1, 1941, an appeal therefrom shall be sued out and taken within a period of time that is less than six months from the date of the judgment or the entry of the order or decree appealed from, including the portion of the sixty days from noon of October 1, 1941, that have expired before the appeal is entered. This is so because of the requisite and appropriate legislative intent under fundamental law that a reasonable time shall be given after October 1, 1941, the effective date of Chapter 20441, for an appeal from a judgment rendered or from an order or decree entered before October 1, 1941, and within the six months allowed by the statute in force prior to noon of October 1, 1941. This authorizes appeals from all judgments, orders or decrees duly made and entered before October 1, 1941, to be taken at any time before the lapse of six months from the date of the judgment or entry of the order or decree to the entry of the appeal and within sixty days after noon of October 1, 1941, when Chapter 20441 became effective and operative, even though a particular period be less than six months from the date of the judgment or from the entry of the order or decree appealed from, to the entry of the appeal after October 1, 1941.
After October 1, 1941, when Chapter 20441, became effective, if not after May 23, 1941, when the enactment became a law upon the approval of the Governor, Chapter 20441, afforded binding public statutory notice that the time for taking appeals was being shortened; and if reasonable time is allowed for taking appeals from judgments, orders or decrees entered before the Act became operative on October 1, 1941, there can be no just complaint if in some cases the time for taking appeals from judgments, orders or decrees entered before October 1, 1941, is less than six months from the entry of the judgment, order or decree appealed from; for after due statutory notice the appellant would have at least sixty days after October 1, 1941, plus the time between the entry of the judgment order or decree appealed from, and October 1, 1941, if the total time of the two periods before and after October 1, 1941, is less than six months between the date of the judgment or the entry of the order or decree is entered in July, August or September, 1941, the appeal must be taken within sixty days from October 1, 1941, even though that would give less than six months from the entry of the decree for taking an appeal therefrom.
Such limitation of time for taking appeals from judgments, orders and decrees entered prior to October 1, 1941, is adjudged to be reasonable upon a judicial consideration of all the circumstances; and the exercise...
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