Glass v. Armstrong, Z--404

• Citation: 330 So.2d 57
• Decision Date: 13 April 1976
• Docket Number: No. Z--404,Z--404
• Parties: Delmer L. GLASS and Estell Glass, his wife, Appellants, v. Linda Glass ARMSTRONG, Appellee.
• Court: Court of Appeal of Florida (US)

Page 57

330 So.2d 57

Delmer L. GLASS and Estell Glass, his wife, Appellants, v. Linda Glass ARMSTRONG, Appellee.

No. Z--404.

District Court of Appeal of Florida, First District.

April 13, 1976.

Clinton E. Foster, Panama City, for appellants.

Russell R. Stewart, Panama City, for appellee.

BOYER, Chief Judge.

In 1973, appellants filed a petition for adoption of their three-year-old grandson which petition was denied. Two years later they filed another petition for adoption of the same child, in which latter petition they alleged the filing and denial of the prior petition, and further alleged a subsequent substantial change in circumstances. The mother of the child, appellee here, filed a motion to dismiss, alleging res judicata. The learned trial judge thereupon entered the order here appealed in which he recited:

'THIS CAUSE having been heard before the undersigned upon the Respondent's Motion to Dismiss and the Court having reviewed the file and pleadings and having taken judicial notice of the other proceedings in this judicial circuit involving the same parties and issues and having heard argument of counsel, it is therefore:

'ORDERED AND ADJUDGED that the amended complaint be and the same is hereby dismissed on the grounds of res judicata.'

Speaking to the propriety of a trial judge taking judicial notice of the records in other cases not introduced into evidence, the Supreme Court of Florida in Kostecos v. Johnson, Sup.Ct.Fla.1956, 85 So.2d 594 said:

'Our consideration of the record on this appeal is complicated by the fact that in entering a summary judgment for the appellee, the trial judge took judicial notice of the records in the county delinquent tax proceeding and in the drainage district foreclosure proceeding. Apparently both parties agreed to this and the trial judge recited in his judgment that he had done so. Although no error is assigned on this proposition, both parties evidently agreeing that the procedure was correct, we are constrained to point out that the trial court is not authorized to take judicial notice of the records in a different case pending or disposed of in the same court but outside the record in the case before him. See Adams v. Adams, 126 Fla. 217, 170 So. 697, and Cassels v. Ideal Farms Drainage District, 156 Fla. 152, 23 So.2d 247. The case before us illustrates the sense of the rule.

'The judgment recites that the trial judge took judicial notice of the entire contents of the records in the two delinquent tax cases. Undoubtedly he could conveniently call upon the office of the clerk of the court to bring the records before him and make them available for his examination in arriving at a judgment. Upon appeal, however, this court is not similarly situated and we are, therefore, obviously without the information contained in the two records in the Circuit Court of Sarasota County which may or may not have properly constituted the basis of the summary judgment that was entered because these records do not constitute a part of the record on appeal unless they were appropriately introduced in evidence either in the original or by certified copy and then included in the record...