Gulf Coast Title Co. v. Walters

• Decision Date: 12 October 1936
• Citation: 125 Fla. 427,170 So. 130
• Parties: GULF COAST TITLE CO. v. WALTERS.
• Court: Florida Supreme Court

170 So. 130

125 Fla. 427

GULF COAST TITLE CO. v. WALTERS.

Florida Supreme Court

October 12, 1936

En Banc.

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

On extraordinary petition for rehearing.

Rehearing granted.

For former opinion, see 168 So. 537.

COUNSEL Alderman & Alderman and Sheppard & Clements all of Fort Myers, and Waller

&amp Pepper, of Tallahassee, for plaintiff in error.

Charles Wilson Ward and David Elmer Ward, both of Fort Mayers, for defendant in error.

OPINION

BROWN, Justice.

Upon further consideration, I am of the opinion that the petition for rehearing in this case should be granted, and that upon such rehearing the question of whether or not the court erred in granting a new trial upon the ground stated in the order should be disposed of on its merits, after first giving counsel for the parties an opportunity to be further heard.

At common law, the right to take writ of error from an order granting a new trial did not exist. Such order was not considered a final judgment. The right to take such writ of error in this state exists solely by virtue of section 4615 C.G.L. That part of the statute which is relevant here reads as follows:

'Upon the entry of an order granting a new trial at law, the party aggrieved by such order may, without waiting for a final judgment in the cause, prosecute a writ of error to the proper appellate court, which shall review the said order,' etc.

In a long line of decisions this court has held that where the record did not show upon which of several grounds of a motion for new trial the order granting it was based, such order would not be reversed unless it appeared that the order was not justified by any grounds of the motion.

The converse of this rule also applies. If the lower court in granting a motion for new trial states the ground or grounds upon which the motion is granted, then this court, which under the statute can only reverse the 'order,' is confined to either affirming or reversing the lower court upon the order as made.

Thus in the dissenting opinion of Mr. Justice Buford in Scott v. National City Bank of Tampa, 107 Fla. 818, 139 So. 370, 142 So. 650, 143 So. 444, 445, 146 So. 573, which involved the legal question here in controversy, it was said:

' In Waters Realty Company v. Miami Tripure Water Company, 100 Fla. 221, text 224, 129 So. 763, 764, this court said:

'This court has consistently held on a writ of error to an order granting a motion for a new trial that only such matters will be considered as are involved in the order. See Jones v. Jacksonville Electric Co., 56 Fla. 452, 47 So. 1; Owens v. Wilson, 58 Fla. 335, 50 So. 674, 138 Am.St. Rep. 117, 19 Ann.Cas. 267; Beverly v. Hardaway, 66 Fla. 177, 63 So. 702; Carney v. Stringfellow, 73 Fla. 700, 74 So. 866.' This enunciation has been followed by this court in many cases, and therefore it appears to me that it is necessary for us to here construe the provisions of the statute above referred to, and upon the construction alone base our order disposing of this case.'

In the case at bar the lower court specifically pointed out the ground of the motion for a new trial on which the order granting the new trial was predicated. The first ground of the motion was that 'The judgment is contrary to law.' In its order granting the motion the court below stated that the order was granted 'on the first ground of the motion in that petitioner's motion for non-suit should have been granted.'

Upon rehearing, the question thus raised, as to whether the trial court erred in denying the motion for nonsuit, should be disposed of on its merits.

I think the vast weight of our previous decisions requires this action.

In the case of Nathan v. Thomas, 63 Fla. 235, 58 So. 247, Ann.Gas.1914A, 387, this court had before it a writ of error from an order granting a motion for a new trial, which motion contained eight grounds. The lower court had granted the motion on the eighth ground, and this court stated: 'The only question presented is whether the court erred in sustaining this eighth ground of the motion.'

In the case of Owens v. Wilson, 58 Fla. 335, 50 So. 674, 138 Am.St.Rep. 117, 19 Ann.Cas. 267, this court said:

'This is a writ of error addressed to the grant of a new trial upon verdict for the defendant in a distress proceeding. Upon such a writ, unlike one directed to a final judgment, the only questions to be considered are those involved in the order granting the new trial. Jones v. Jacksonville Electric Co., 56 Fla. 452, 47 So. 1.'

The rule which has hitherto prevailed in this jurisdiction is clearly settled in the case of Wolfe v. City of Miami, 114 Fla. 238, 154 So. 196, 198, where in the opinion by Mr. Chief Justice Davis it was said:

'It was always in order, before the statute permitting writs of error to orders granting new trials, to assign the erroneous granting of a motion for a new trial as error, when prosecution a writ of error from an adverse judgment rendered after the second trial was had pursuant to the order granting new trial.

'Therefore the review of an order granting a new trial has uniformly been limited to such matters, and to such matters only, as were involved in the order granting the new trial, as appealed from. Phillips v. Garrett 147 So. 857; Scott v. National City Bank of Tampa, 107 Fla. 818, 139 So. 370, 142 So. 650, 143 So. 444, 146 So. 573. On writ of error to an order granting a new trial the appellate court can do no more than to 'review said order' as specifically provided by the statute. Sewell v. Sewell, 91 Fla. 982, 109 So. 98.'

The case from which the foregoing quotation was made was decided subsequently to the case of Scott v. National City Bank, and the writer of that opinion by citing the Scott Case evidently considered that, properly understood, the Scott Case was not in conflict with the well-settled rule.

Such must have been also the view of the writer of the opinion in the Scott Case, because the writer of that opinion who also wrote the opinion in the later case of Phillips v. Garrett, 109 Fla. 435, 147 So. 857, 858, said in the latter case:

'The court, on motion of the defendant, set aside the verdict and granted a new trial, to which order the plaintiff took a writ of error. The only questions to be considered by this court therefore are those involved in the order granting a new trial. See Jones v. Jacksonville Electric Co., 56 Fla. 452, 47 So. 1.'

And in City of Gainesville v. Kirkland, 116...