Floyd v. State ex rel. LaVigne Elec. Co., No. 31376

CourtUnited States State Supreme Court of Florida
Writing for the CourtTHOMAS; ROBERTS; DREW; O'CONNELL
Citation139 So.2d 873
PartiesRobert L. FLOYD, as Judge of the Circuit Court of the Eleventh Judicial Circuit of Florida, Petitioner, v. STATE of Florida ex rel. LA VIGNE ELECTRIC COMPANY, a Florida corporation, and State of Florida ex rel. Federated Department Stores, Inc., a Florida corporation, Respondents.
Docket NumberNo. 31376
Decision Date21 March 1962

Page 873

139 So.2d 873
Robert L. FLOYD, as Judge of the Circuit Court of the Eleventh Judicial Circuit of Florida, Petitioner,
v.
STATE of Florida ex rel. LA VIGNE ELECTRIC COMPANY, a Florida corporation, and State of Florida ex rel. Federated Department Stores, Inc., a Florida corporation, Respondents.
No. 31376.
Supreme Court of Florida.
March 21, 1962.
Rehearing Denied May 1, 1962.

Oscar Rappaport, and Truett & Watkins, Miami, for petitioner.

Welsh, Cornell, Pyszka & Carlton, Miami, for LaVigne Electric Co. and Blackwell, Walker & Gray, Miami, for Federated Department Stores, Inc., respondents.

THOMAS, Justice.

An action was brought in the Circuit Court of the Eleventh Judicial Circuit by Lillian Friedler and her husband against LaVigne Electric Company and Federated Department Stores, Inc., to recover damages for injuries to Lillian Friedler alleged to have been the result of the negligence of the defendants. Eventually the court granted motions for summary judgments in favor of the defendants. These were entered 30 December 1960 and 3 January 1961.

Then the plaintiffs filed a motion for rehearing. Before the motion was called up

Page 874

for argument the trial judge, ex mero motu, set the matters for reargument because after the entry of the judgments he had learned of a decision of the District Court of Appeal, Third District, which indicated that he might have been mistaken in disposing of the litigation by summary judgments instead of submitting the issues to a jury. Purdon et ux. v. Cohen, Fla.App.1961, 126 So.2d 575.

Subsequent to the arguments the court on 1 March 1961 entered an order setting aside the summary judgments and denying the motions that had been made to enter them.

Afterward the defendants presented to the District Court of Appeal, Third District, their suggestion for a writ of prohibition to preclude the circuit judge from proceeding further.

When the case reached the District Court of Appeal there was no question about the procedure that had been followed culminating in the judgments, nor were the merits of the original controversy under consideration. The question was whether or not the District Court of Appeal should curb further action by the circuit judge on the ground that he would, if he undertook to proceed with the trial of the case, exercise jurisdiction he no longer had. In short, it was the position of the defendants that upon the entry of the summary judgments the circuit judge completely lost control of the case.

A rule nisi was issued by the District Court of Appeal ordering the circuit judge to show cause why the suggestion 'should not be granted,' and later, the circuit judge having filed no return, the District Court of Appeal held that a prima facie case had been shown and that judgment in prohibition should be awarded. This conclusion was supported by the simple statement that 'a trial judge may not grant a petition for rehearing addressed to a summary final judgment. Cf. Morans v. Stang, Fla.App.1960, 124 So.2d 891.' True, the case mentioned bears the statement that the court was unaware of any provision in the rules or other basis for consideration of a motion in the nature of one for rehearing after the entry of a summary judgment and, therefore, concluded that the trial judge properly decided he lacked jurisdiction 'to further amend the pleadings subsequent to the entry of summary final judgment.' As a basis for this pronouncement the court cited the opinion of the District Court of Appeal, Third District, in Batteiger v. Batteiger, Fla.App.1959, 109 So.2d 602, in which it was held that except for the correction of clerical errors or mistakes due to oversight or omissions, a chancellor may not enter an amended decree after the elapse of the period for the filing of a petition for rehearing.

For the matter, this court held in Weisberg v. Perl, 73 So.2d 56, that 'a petition for a rehearing after summary final judgment [was] unknown and unheard of' in a common law action.

The question whether or not there should be a distinction between the control of a trial judge over a judgment entered in the ordinary case and one entered summarily is now receiving the earnest consideration of this court. 1 It is clear from the last cited case that it was held that the procedure

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was unknown but it is a bit difficult to understand why the circuit judge having the conviction that a decision of the appellate court released after entry of the summary judgment showed he had erred could not correct the mistake without forcing the defendants to the relatively circuitous route of taking an appeal when in all probability the end result would be the same.

It seems to us now that at best the problem was procedural and did not involve the power of the circuit judge to do as he did even assuming that he was wrong. The thought that a judge has a right to be wrong is not new. But it seems somewhat harsh to say to a trial judge that in attempting to correct a judgment he had concluded was erroneous, during the period he could have so acted had it not been a summary judgment, he had so far exceeded his jurisdiction that he was sapped of all power to go further, or, in other words, that he should be stopped in his tracks.

From our study of relevant decisions of this court on the subject, we think the power of a court to correct the errors in its own judgments is so deep-seated that it cannot be brushed aside because of the lack of provision for rehearing of a judgment summarily entered. Discussions of the inherent power of a court to repair the injury it has occasioned may be found in Masser et al. v. London...

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15 practice notes
  • Connor v. State, No. 5D05-3994.
    • United States
    • Court of Appeal of Florida (US)
    • December 8, 2006
    ...or set them aside in the absence of statutory or constitutional restrictions.") (citing Floyd v. State ex rel. La Vigne Elec. Co., 139 So.2d 873, 875 (Fla.1962), superseded by statute as recognized in Kippy Corp.; Lewis v. Jennings, 64 So.2d 275, 277 (Fla.1953)), review denied, 641 So.2d 13......
  • Kapusta v. De Puy Mfg. Co., No. 20619
    • United States
    • Indiana Court of Appeals of Indiana
    • September 29, 1967
    ...543; Weisberg v. Perl (1954), Fla., 73 So.2d 56 (Weisberg case overruled on issue not relevant here in Floyd v. State (1962), Fla., 139 So.2d 873); Collins v. Toombs (1946), 271 App.Div. 160, 63 N.Y.S.2d 545; Wrobel v. Call et al. (1932), 142 Misc. 610, 255 N.Y.S. The only federal court dec......
  • Shelby Mut. Ins. Co. of Shelby, Ohio v. Pearson, No. 39225
    • United States
    • United States State Supreme Court of Florida
    • May 20, 1970
    ...prior to expiration of the time for taking an appeal or before one is in fact taken. Floyd v. State ex rel. La Vigne Electric Co. (Fla.), 139 So.2d 873. It is well known that courts have long followed this practice. This was so at common law and I do not find it has been modified by modern ......
  • Elmore v. Palmer First Nat. Bank & Trust Co. of Sarasota, No. 68--301
    • United States
    • Court of Appeal of Florida (US)
    • March 26, 1969
    ...period, see F.R.C.P. 1.530, a timely motion asking the court to do so is proper. See Floyd v. State ex rel. La Vigne Elec. Co., Fla.1962, 139 So.2d 873; Kippy Corporation v. Colburn, Fla.1965, 177 So.2d 193; Pensacola Chrysler-Plymouth, Inc. v. Costa, Fla.App., 195 So.2d 250, cert. denied, ......
  • Request a trial to view additional results
15 cases
  • Connor v. State, No. 5D05-3994.
    • United States
    • Court of Appeal of Florida (US)
    • December 8, 2006
    ...or set them aside in the absence of statutory or constitutional restrictions.") (citing Floyd v. State ex rel. La Vigne Elec. Co., 139 So.2d 873, 875 (Fla.1962), superseded by statute as recognized in Kippy Corp.; Lewis v. Jennings, 64 So.2d 275, 277 (Fla.1953)), review denied, 641 So.2d 13......
  • Kapusta v. De Puy Mfg. Co., No. 20619
    • United States
    • Indiana Court of Appeals of Indiana
    • September 29, 1967
    ...543; Weisberg v. Perl (1954), Fla., 73 So.2d 56 (Weisberg case overruled on issue not relevant here in Floyd v. State (1962), Fla., 139 So.2d 873); Collins v. Toombs (1946), 271 App.Div. 160, 63 N.Y.S.2d 545; Wrobel v. Call et al. (1932), 142 Misc. 610, 255 N.Y.S. The only federal court dec......
  • Shelby Mut. Ins. Co. of Shelby, Ohio v. Pearson, No. 39225
    • United States
    • United States State Supreme Court of Florida
    • May 20, 1970
    ...prior to expiration of the time for taking an appeal or before one is in fact taken. Floyd v. State ex rel. La Vigne Electric Co. (Fla.), 139 So.2d 873. It is well known that courts have long followed this practice. This was so at common law and I do not find it has been modified by modern ......
  • Elmore v. Palmer First Nat. Bank & Trust Co. of Sarasota, No. 68--301
    • United States
    • Court of Appeal of Florida (US)
    • March 26, 1969
    ...period, see F.R.C.P. 1.530, a timely motion asking the court to do so is proper. See Floyd v. State ex rel. La Vigne Elec. Co., Fla.1962, 139 So.2d 873; Kippy Corporation v. Colburn, Fla.1965, 177 So.2d 193; Pensacola Chrysler-Plymouth, Inc. v. Costa, Fla.App., 195 So.2d 250, cert. denied, ......
  • Request a trial to view additional results

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