Chitty & Co. v. Granthum

Citation146 Fla. 299,200 So. 696
CourtUnited States State Supreme Court of Florida
Decision Date25 February 1941
PartiesCHITTY & CO. v. GRANTHUM.

Opinion Modified April 25, 1941.

En Banc.

Error to Circuit Court, Palm Beach County; George W. Tedder, Judge.

Action by C. A. Granthum against Chitty & Co., a corporation. Judgment for plaintiff, and defendant brings error.

Reversed.

COUNSEL McKay, Dixon & Dejarnette, of Miami, for plaintiff in error.

Edgar G. Hamilton and Earnest, Lewis & Smith, all of West Palm Beach, for defendant in error.

OPINION

CHAPMAN Justice.

On writ of error to the Circuit Court of Palm Beach County, Florida the record discloses, that one Granthum sued Chitty & Co. in a common-law action in the Circuit Court of Palm Beach County. The issues in the common-law action were submitted to a jury, and on Wednesday, December 6, 1939, the jury rendered a verdict for the plaintiff below in the sum of $10,000. The case was tried before the Honorable George W. Tedder, whose home is at Fort Lauderdale, and an order was entered assigning Judge Tedder to preside in the Circuit Court of Miami, Florida, beginning December 11, 1939.

On Monday, December 11, 1939, counsel for Chitty & Co. applied for an order extending the time for filing a motion for a new trial and was granted by Judge Tedder at Miami on Monday December 11, 1939. The order extending the time for the presentation of the motion for a new trial, while signed by Judge Tedder at Miami on Monday, December 11, 1939, the same was not filed in the office of the Clerk of the Circuit Court of Palm Beach County until Wednesday, December 13, 1939. On December 18, 1939, counsel for Chitty & Co. presented a motion for a new trial and the Judge endorsed thereon 'Presented and filed before me 12-18-39 and date for hearing will be set later. George W. Tedder, Judge.' The motion for a new trial was thereupon forwarded to the Clerk of the Circuit Court at West Palm Beach for filing, and the motion for a new trial was filed by the Clerk on December 19, 1939. Final judgment was rendered December 19, 1939.

On December 22, 1939, counsel for plaintiff below filed in the Circuit Court of Palm Beach County a motion to strike the motion for a new trial and a number of grounds offered in support of the motion, but the essential grounds considered in the lower court are: (1) That the order of December 11, 1939, extending the time for the filing of a motion for a new trial was not entered within four days after the rendition of the verdict; (2) the order of December 11, 1939 extending the time in which to file a motion for a new trial, if entered within the time required, was not filed within the four-day period provided by Section 4498, C.G.L.; (3) the motion for a new trial was not filed within the extended time.

On March 20, 1940, the Honorable George W. Tedder made and entered an order granting the motion to strike the motion for a new trial and an able, learned, and exhaustive opinion in support of his conclusions appears in the record. On April 4, 1940, the lower court granted a motion for a rehearing and after a rehearing on April 27, 1940, the court entered an order adhering to its order dated March 20, 1940, granting the motion to strike the motion for a new trial filed by the defendant below. Writ of error was taken to the final judgment and these several orders are presented for a review by this Court.

First. The first question presented by the said writ of error to this court for a decision is, viz.: Was the order of the lower court dated Monday, December 11, 1939, made at the City of Miami extending the four-day period for the making and presentation of a motion for a new trial, after the rendition by a jury of a verdict dated December 6, 1939, erroneous, when the last day of the four-day period fell on Sunday? It is the contention of counsel for plaintiff in error that the order of the trial court dated December 11, 1939, extending the time in which to prepare, present and file the motion for a new trial was proper and, as the verdict in the case at bar was filed in court on Wednesday, December 6, 1939, the four-day period provided by Section 4498 C.G.L., commenced on Thursday, December 7, 1939, and the fourth day ended on Sunday, and under the provisions of Common Law Rule No. 5 adopted by this Court on April 27, 1936, the last of the four days allowed under the statute was excluded in the computation of time, because 'the last day fell on Sunday.'

Common Law Rule 5 adopted April 27, 1936, provides:

'Rule 5. Time-Reckoning.--In all cases in which any particular number of days, not expressed to be clear days, is allowed or prescribed, the same shall be reckoned exclusive of the first day and inclusive of the last day unless the last day shall fall on Sunday or on New Year's Day, the Fourth of July, Labor Day, Armistice Day, Thanksgiving Day or Christmas Day, in which case the time shall be reckoned exclusive of that day also; provided, however, that in all cases where the period of time is less than one week any Sunday or any such holiday intervening shall be excluded in the calculation.'

Counsel for defendant in error contends that the order of extension dated December 11, 1939, was not authorized by the provisions of Section 4498, C.G.L., and the four-day period expired on Sunday, December 10, 1939 and Saturday, December 9, 1939, was the last day the trial court had the power under the aforesaid provision of the statute to make an order extending the time for the presentation of the motion for a new trial. The Florida decisions cited and relied upon are Simons v. Hanne, 50 Fla. 267, 39 So. 77, 7 Ann.Gas. 322; Florida East Coast R. Co. v. George, 91 Fla. 42, 107 So. 266, with citation of authorities from other jurisdictions. Common Law Rule No. 63 was considered and interpreted in the cases supra.

Old Common Law Rule No. 63 is, viz.:

'Rule 63. In all cases in which any particular number of days, not expressed to be clear days, is prescribed by the rules or practice of the courts, the same shall be reckoned exclusively of the first day and inclusively of the last day, unless the last day shall happen to fall on Sunday, (Christmas Day, Good Friday, or a day appointed for a public fast or thanksgiving), in which the time shall be reckoned exclusively of that day also.'

Common Law Rule 5 adopted by the Court on April 27, 1936, and made effective October 1, 1936, provided a rule for the computation of...

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