Dupree v. Elleman
| Citation | 139 Fla. 809,191 So. 65 |
| Parties | DUPREE et al. v. ELLEMAN. |
| Decision Date | 21 July 1939 |
| Court | Florida Supreme Court |
Rehearing Denied Oct. 6, 1939.
Proceeding under the Workmen's Compensation Act by Harold J Elleman, claimant, against Henry G. Dupree and the Fidelity & Casualty Company of New York. From an adverse judgment of the circuit court affirming an order of the Industrial Commission, defendants appeal. On claimant's motion to dismiss the appeal.
Appeal dismissed.
On Petition for Rehearing. Appeal from Circuit Court, Leon County; J. B. Johnson, Judge.
Marks, Marks, Holt, Gray & Yates and Thomas B. Barton, all of Jacksonville, and Petteway & Gwynn, of Tallahassee, for appellants.
Bedell & Bedell, of Jacksonville, for appellee.
Whitfield & Whitfield, of Tallahassee, amicus curiae.
A motion was filed June 8, 1939, by appellee, to dismiss this appeal which was taken from a judgment of the Circuit Court affirming on appeal an order of the Florida Industrial Commission, under the Florida Workmen's Compensation Laws of 1935 and 1937. The grounds of the motion to dismiss this appeal are:
On June 19, 1939, appellants filed the following:
'Come now appellants herein by their undersigned solicitors and show unto the Court that the following proceedings were had and taken in the lower court subsequent to the filing of the transcript of record in this cause:
Notice of Entry of Appeal herein so as to make said appeal returnable to May 31, 1939, instead of June 6, 1939, the return date specified in the original notice of entry of appeal. Said amendment of notice of entry of appeal was filed with said Clerk on May 31, 1939, and recorded by him in Minute Book No. 20, at Page 366 in the records of his office.
'2. On May 31, 1939, appellants presented to the Hon. J. B. Johnson, one of the Judges of the Circuit Court in and for the Second Judicial Circuit of Florida, a motion to amend original notice of entry of appeal herein so as to make the return date May 31, 1939, instead of June 6, 1939, as specified in the original notice of appeal. On said May 31, 1939, the Hon. J. B. Johnson rendered an Order amending said notice of entry of appeal as requested in said motion. This motion and order were on May 31, 1939, filed with the Clerk of said Circuit Court and recorded by him in Minute Book No. 20 at Page 366 in the records of his office.
'Appellants further show unto the Court that Appellee has filed herein a motion to dismiss this appeal.
'Now, therefore, appellants attach hereto certified copies of Appellants' Amendment to Notice of Entry of Appeal, Appellants' Motion to Amend Notice of Entry of Appeal and Judge Johnson's Order Amending Notice of Entry of Appeal, and respectfully move this Court to consider these proceedings in this cause at the same time the court considers Appellee's Motion to Dismiss this Appeal.'
'Ordered and adjudged that appellants Notice of Entry of Appeal heretofore entered herein be and the same is hereby amended so as to make the return day therein May 31, 1939.
'Done and ordered at Tallahassee, Florida, this 31st day of May, A. D. 1939.
'J. B. Johnson
'Circuit Judge.'
The record shows that the order or award of the Florida Industrial Commission was made November 21, 1938, and filed in the office of the Commission the following day. An appeal to the Circuit Court was taken December 20, 1938, returnable before the Circuit Court January 23, 1939. The award appealed from was affirmed by the Circuit Court March 1, 1939. An appeal to this Court from such judgment of affirmance was taken March 11, 1939, and made returnable before the Supreme Court June 6, 1939, more than ninety days from the date of the judgment of the Circuit Court affirming the award made by the Commission.
The controlling statute providing for appeals in this class of cases mandatorily requires such an appeal to be 'taken within thirty days after the entry of the judgment of the Circuit Court,' and that 'the appeal shall be returnable from the * * * Circuit Court to the Supreme Court to a day more than thirty days and not more than ninety days from the date of the judgment * * * appealed from.' The courts are given no authority to extend the return day of appeals as fixed by statute, and the judicial power conferred by the constitution pon the courts does not by implication or intendment confer upon the courts authority to extend the return day of appeals fixed by statute. The appellate jurisdiction of the courts is conferred by the constitution or by statutes not in conflict with the constitution; but such jurisdiction must be invoked in particular cases in accordance with controlling statutes, or the appellate jurisdiction will not be acquired in particular cases. South Atlantic Steamship Co. v. Tutson, 190 So. 675, this day filed in this Court.
This Court had potential jurisdiction of this appeal under the constitution and Chapter 18413, Acts of 1937, when properly invoked; but actual jurisdiction has not been acquired of the cause, since the return day of the appeal was more than ninety days from the date of the judgment of affirmance appealed from. See Simmons v. Hanne, 50 Fla. 267, 39 So. 77, 7 Ann.Cas. 322; State v. City of Coral Gables, 101 Fla. 237, 133 So. 892; Willey v. Hoggson, 89 Fla. 116, 105 So. 126; Sumner Lumber Co. v. Mills, 64 Fla. 513, 60 So. 757.
For a more extended discussion of both the constitutional validity of the statute conferring appellate jurisdiction upon the Supreme Court in this class of cases, and the insufficiency of the appeal, as taken, to give this court appellate jurisdiction of this case, see South Atlantic Steamship Company v. Tutson, 190 So. 675, and Weaver-Loughridge Lumber Company v. Coleman, 191 So. 16, this day filed in this Court.
The amendment to the entry of appeal attempted to be made in this case, as shown above, is ineffectual for the reason that the thirty days' time from the entry of the judgment in the Circuit Court for taking the appeal had expired before the attempt to amend was made.
The appeal is dismissed because it was made returnable to a day more than ninety days from the date of the judgment appealed from, in violation of the statute. Robinson Imp. Co. v. Jackson, 55 Fla. 657, 45 So. 987.
It is so ordered.
On Petition for Rehearing.
A petition for rehearing and for supplementing the record has been filed. The order of the Circuit Judge affirming an award made by the Florida Industrial Commission was signed and filed in the office of the Clerk of the Circuit Court on March 1, 1939, and 'recorded in Judgment Book No. 4, at page 54 thereof.'
The statute provides that This provision does not require the order as affirmed by the Circuit Court to be filed in the office of the Commission before an appeal may be taken from the final order or judgment of the Circuit Court to the Supreme Court.
The entry of the appeal was not dependent upon the filing of the Circuit Court order of affirmance in the office of the Florida Industrial Commission. Filing the entry of appeal and the bond superseded the execution of the award as affirmed by the Circuit Court.
The return day of the appeal was in violation of the statute made to a day more than ninety days from the date and filing of the judgment and from the date of the filing of the entry of appeal in the office of the Clerk of the Circuit Court and from the date of the entry of the appeal in 'Judgment Book No. 4.'
Even if the record of the appeal in 'Judgment Book No. 4' is not a compliance with the intendments of the statute, the filing of the appeal would give this Court jurisdiction of the cause, if the return day of the appeal had been made to a day more than thirty days and not more than ninety days from the date of the judgment appealed from, as required by the statute, a record of the appeal in any particular book not being a prerequisite to the appeal.
The appellee has appeared in the cause in this court. He does not consent to an amendment of the return day of the appeal to make it conform to the commands of the statute, if that can be done to make the appeal effective after the statutory time for taking the appeal has expired. But the appellee by motion to dismiss challenges the legal sufficiency...
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South Atlantic S.S. Co. of Delaware v. Tutson
... ... both the cause and the parties. Provident Savings Bank & ... Tr. Co. v. Devito, 98 Fla. 1076, 125 So. 235; Dupree ... v. Elleman, Fla., 191 So. 65, and Weaver-Loughridge ... Lumber Co. v. Coleman, Fla., 191 So. 16, filed July 21, ... 1939. DeBogory v ... ...
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