Bradford v. Foundation & Marine Const. Co., 5420

• Decision Date: 02 February 1966
• Docket Number: No. 5420,5420
• Citation: 182 So.2d 447
• Parties: Michael F. BRADFORD, doing business as Bradford Contracting Company, McDonough Construction Company of Florida, a Florida corporation and Seaboard Surety Company, a New York corporation, Appellants, v. FOUNDATION & MARINE CONSTRUCTION COMPANY, Inc., a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 447

182 So.2d 447

22 A.L.R.3d 917

Michael F. BRADFORD, doing business as Bradford Contracting Company, McDonough Construction Company of Florida, a Florida corporation and Seaboard Surety Company, a New York corporation, Appellants, v. FOUNDATION & MARINE CONSTRUCTION COMPANY, Inc., a Florida corporation, Appellee.

No. 5420.

District Court of Appeal of Florida, Second District.

Feb. 2, 1966.

Marvin Barkin, of Fowler, White, Gillen, Humkey & Trenam, Tampa, and Edgar miller, of Miller & Russell, Miami, for appellants.

J. D. Hobbs, Jr., of Cramer & Hobbs, and Paul H. Roney, of Roney & Beach, St. Petersburg, for appellee.

ALLEN, Chief Judge.

Appellants, defendants below, appeal from a final judgment awarding sums for work done under the contract, services rendered, charge backs, bond premium, crane rental and attorneys' fees.

The subject of this case is the building of a canal. The principal controversy arose out of the interpretation of construction contracts entered into by the contestants and liability of payment for work done by the appellee, plaintiff below. The three day trial involved resloving the contractual issues by seeing and hearing eight witnesses give testimony and understanding the thirty-seven exhibits filed.

After trial, the judge, who heard the case without a jury, denied appellants' motion for a directed verdict and reserved rendition of verdict and judgment. After this reservation, the circuit judge retired and the cause was transferred to another judge of the circuit. The successor judge made finding upon the record alone and entered a final decree after denying appellants' motion for a trial of the issue de novo.

We are faced squarely with whether it was error for the successor judge to enter findings and a final decree, when testimonial proof was given at trial, on a cause tried completely by his predecessor, without a jury, but undetermined thereby.

We have studied the cases from this jurisdiction cited by both sides and find that they neither are in point nor help direct the way to our dedision. Further research pointed out that the order jurisdictions, which have passed upon this question, have arrived at opposite results. Annot. 54 A.L.R. 952; 30 Am.Jur., Judges §§ 39, 40 (1958).

It is generally stated that a successor judge may complete any acts uncompleted by his predecessor where they do not require the successor to weigh and compare testimony. 48 C.J.S. Judges § 56a (1947). Also, in the absence of a statute to the contrary, as successor judge cannot generally make findings or render a final decree even though the testimony is transcribed at trial and preserved. 48 C.J.S. Judges § 56b (1947); 54 A.L.R. 959(e).

Reason and conscience lead this court, in line with other jurisdictions, to adopt the rule that where oral testimony is produced at trial and the cause is left undetermined, the successor judge cannot render verdict or judgment without a trial de novo, unless upon the record by stipulation of the parties. Feldman v. Board of Pharmacy of Dist. of Columbia, D.C.Mun.App., 150 A.2d 100 (1960); Cram v. Bach, 1 Wis.2d 378, 83 N.W.2d 877, aff'd on rehearing, 1 Wis.2d 370, 85 N.W.2d 673 (1957); Dawson v. Wright, 234 Ind. 626, 29 N.E.2d 796 (1955); McAllen v. Souza, 24 Cal.App.2d 247, 74 P.2d 853 (1938); State ex rel. Wilson v. Kay, 164 Wash. 685, 4 P.2d 498 (1931).

The appellee argues that Sections 26.19 and 38.12, Florida Statutes, F.S.A., govern the outcome of this decision in the absence of Florida case law.

Section 38.12 states, in pertinent part:

'Upon the resignation, death or impeachment of any judge, all matters pending before him shall be heard and determined by his successor, and parties making any motion before such judge shall suffer no detriment by reason of his resignation, death or impeachment. * * *' (Emphasis added.)

The phrase 'heard and determined' is ambiguous. We agree with a sister state's interpretation of a similar statute that it does not authorize the successor judge to weigh and compare testimony of...