Connell v. Mittendorf, 3264
| Decision Date | 14 November 1962 |
| Docket Number | No. 3264,3264 |
| Citation | 147 So.2d 169 |
| Parties | T. R. CONNELL, Appellant, v. Theodor H. MITTENDORF, and Dorothy S. Mittendorf, his wife, Appellees. |
| Court | Florida District Court of Appeals |
E. H. Wilkerson, Orlando, for appellant.
Neal D. Huebsch, Eustis, for appellees.
This is an interlocutory appeal from an order entered in chancery denying the defendant's motion to dismiss. The appellant was the defendant, and the appellees were the plaintiff. Prior to consideration of the merits, we consider the pending motions.
The appellees have filed their Motion to Strike the appellant's reply brief on the ground that it was not timely served. The appellees certify that they served their brief by mail on June 4, 1962. Florida Appellate Rule 4.2, subd. e, 31 F.S.A. requires the appellant to serve his reply brief within five days after he is served with appellee's brief, and Florida Appellate Rule 3.4, subd. b(3) provides that service by mail shall add three days to the time allowed to do any act required to be done within a certain time after service of a notice or paper. Therefore, by combining the two, appellant had eight days to serve his reply brief. Florida Appellate Rule 3.18 requires that in the computing of any period of time, the day of the act, event or default from which the designated period of time begins to run is not to be included. The last day of the period so computed shall be counted unless it is a Saturday, Sunday or legal holiday, and when the period of time allowed shall be less than seven days, immediate Saturdays, Sundays and legal holidays shall be excluded in the computation. Since the effect of appellees serving by mail made the period of time eight days, the immediate Saturdays, Sundays and legal holidays are counted in the computation. We thus arrive at the fact that appellant's reply brief should have been served on June 12th, and it should have been filed with this court promptly after such service. June 12th was a Tuesday, and not a legal holiday. Appellant's reply brief was served on June 25th and filed June 26th. There were no motions made, as provided by Florida Appellate Rule 3.9, which would have suspended the time for the filing of appellant's reply brief, pursuant to Florida Appellate Rule 3.9, subd. f; and appellant has not filed any motion stating good cause for an extension of time, pursuant to Florida Appellate Rule 3.7, subd. d. Appellees' Motion is granted, and appellant's reply brief is stricken.
The appellees have filed their Motion for an Allowance of an Attorney's Fee, to be paid by the appellant, for appellees' attorney, for services in this appeal, citing Florida Appellate Rule 3.16, subd. e. This rule becomes applicable only in a case where attorneys' fees are allowed by law. The contract involved in this litigation does not require the appellant to pay the appellees' attorney's fee. The terms and conditions of the Supersedeas Order and Bond did not require appellant to pay appellees' attorney's fee. Appellees do not cite any statutory authority requiring appellant to pay appellees' attorney's fees. The appellees' Motion for Attorney's Fee is, therefore, denied. Fontainebleau Hotel Corporation v. Postol, Fla.App.1962, 142 So.2d 299. We proceed now to consider the merits of the appeal.
The complaint alleges that the plaintiffs were the owners of certain real property and that they entered into a contract with the defendant for the construction of improvements upon the real property according to plans and specifications made a part of the contract; that the defendant agreed to construct the improvements, and the plaintiffs agreed to pay a fixed sum for such construction; and that the improvements were built upon said premises substantially according to the contract. The complaint further alleged that the plaintiffs made tender of the balance of the contract price which was rejected by the defendant; that the sum tendered was the amount due according to the determination of the plaintiffs; that the defendant refused to deliver over to the plaintiffs evidence that all material and labor bills had been paid and that the defendant has failed and refused to perform the conditions of the contract; that the defendant has stated that he is unable to make the payments due to his contractors; that any judgment recovered by ...
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International Harvester Cr. Corp. v. East Coast Truck
...(Fla.App., 1st D.C.A.1958). A maxim of equity is that "equity will not suffer a wrong to be without a remedy." Connell v. Mittendorf, 147 So.2d 169, 172 (Fla.App., 2d D.C.A.1962). Another principle of equity is that "equity aids the vigilant and not those who slumber on their rights." Matou......
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Lambert v. Lambert
...to protect a multiplicity of suits. See Realty Bond and Share Co. v. Englar, 104 Fla. 329, 143 So. 152 (1932); Connell v. Mittendorf, 147 So.2d 169 (Fla. 2d DCA 1962). And, finally, equity may stay its own proceedings and consolidate causes for trial. See Terra Ceia Estates v. Taylor, 68 Fl......
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Home America, Inc. v. Atkinson, 80-546
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