Desoto Holding Co. v. Boyer

• Decision Date: 11 June 1923
• Citation: Desoto Holding Co. v. Boyer, 85 Fla. 517, 97 So. 205 (Fla. 1923)
• Parties: DESOTO HOLDING CO. v. BOYER.
• Court: Florida Supreme Court

97 So. 205

85 Fla. 517

DESOTO HOLDING CO. v. BOYER.

Florida Supreme Court

June 11, 1923

Error to Circuit Court, Highlands County; George W. Whitehurst Judge.

Proceeding between the Desoto Holding Company and James Boyer.Judgment for the latter, and the former brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Presentation of motion for new trial must be made to judge within statutory time or extension thereof.As the statute specifically provides that an order extending the time for making and presentation of a motion for a new trial may 'be made within four days after the rendition of the verdict and during the same term,' such extension 'not to exceed fifteen days from the rendition of the verdict,' in order for the trial court to retain jurisdiction of the matter, there must be a presentation to the judge of such motion within the time stated.

Order extending time of motion for new trial made in term time or presented after adjournment may be made.When a motion for new trial is duly made in term time or is duly made and presented after adjournment of the term, pursuant to an order made under section 2811,Revised General Statutes 1920, the court is for the purposes of such motion regarded as in session, and an order extending the time for presenting a bill of exceptions in the case may be made under rule 97 upon disposing of the motion for new trial.

Judge without authority to adjudicate motion for new trial when not presented within extension.Where a motion for new trial was not duly presented to the judge within the time fixed by the order made under section 2811, Revised General Statutes, the judge was not authorized to adjudicate the motion for a new trial, or to make an order under rule 97 extending the time for presenting a bill of exceptions in the case.

Judgment affirmed when assignments of error predicated on stricken bill of exceptions.Where the assignments of error are predicated solely upon the bill of exceptions which is stricken, and there remains no matter presented for review the judgment will be affirmed.

COUNSEL

Treadwell & Treadwell, of Arcadia, for plaintiff in error.

Leitner & Leitner, of Arcadia, for defendant in error.

OPINION

WHITFIELD J.

A motion is made to strike the motion for a new trial, and also the bill of exceptions contained in the transcript, because the motion for new trial was not presented to the court within 15 days from the rendition of the verdict as authorized by an order of the court under section 2811,Revised General Statutes 1920, and because the bill of exceptions was not presented to the court for settlement within the time required by law.

Section 2811,Revised General Statutes 1920, is as follows:

'Motions for new trials in civil cases shall be made within four days after the rendition of the verdict and during the same term, 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.

'It shall not be necessary to incorporate in any motion for a new trial any matter in pais previously excepted to, for the purpose of having the same reviewed by the Appellate Court.The provisions of this section shall not apply to criminal causes.'

It appears that the verdict for the defendant in an action of ejectment was rendered September 7, 1922.On September 11, 1922, the court granted an extension of 15 days from September 7 for filing a motion for new trial.On September 21, 1922, the plaintiff filed a motion for new trial in the clerk's office.It does not appear that the motion for new trial was presented to the judge within 15 days from the rendition of the verdict, or that 'a copy of the motion to be presented to the judge' was 'served on the opposite party or his attorney within three days' notice of the time and place that the same will be presented and heard,' as is specifically required by the quoted statute.

In denying a motion to strike the motion for new trial that had been filed with the clerk of the circuit court, the circuit judge on November 1, 1922, made the following order:

'This motion having been presented and duly argued by counsel for the respective parties, and it appearing to the court that the motion for new trial in this case sought to be stricken was filed with the clerk of this court within the time allowed by an order extending the time, wherefore this motion is overruled and denied.Defendant excepts.George W. Whitehurst, Judge.'

On the same day the trial court overruled the motion for new trial, and allowed 90 days for presenting a bill of exceptions.

As the statute specifically provides that an order extending the time for making and presentation of a motion for a new trial may 'be made within four days after the rendition of the verdict and during the same term,' such extension 'not to exceed fifteen days from the rendition of the verdict,' in order for the trial court to retain jurisdiction of the matter, there must be a presentation to the judge of such motion within the time stated.The statute also expressly...