Herrin v. Avon Mfg. Co.
| Decision Date | 11 April 1924 |
| Parties | HERRIN v. AVON MFG. CO. |
| Court | Florida Supreme Court |
Error to Circuit Court, Highlands County; George W. Whitehurst Judge.
Action by John G. Herrin against the Avon Manufacturing Company, a corporation. Verdict for plaintiff was set aside and a new trial awarded, and plaintiff brings error.
Affirmed.
Syllabus by the Court
Court could extend time for presentation of motion for new trial during term within four days after verdict without notice to opposing party. Notice to the opposing party, or his counsel is not a condition precedent to the right of a trial court within four days after verdict and during the term, to grant an application therefor and enter an order extending the time for presentation of a motion for new trial, not to exceed 15 days from the rendition of the verdict.
Order granting new trial not disturbed where evidence conflicts and judicial discretion not abused. Where the evidence on a material issue in a cause is conflicting and does not palpably preponderate in favor of the verdict, and it does not affirmatively appear from the record that in granting a new trial any law has been violated or that judicial discretion has been abused, resulting in injustice, the order of the trial court granting a new trial will not be disturbed on writ of error.
George A. De Cottes and Fred R. Wilson, both of Sanford, for plaintiff in error.
Leitner & Leitner, of Arcadia, for defendant in error.
This is an action to recover damages for personal injuries sustained by plaintiff while in defendant's employ and as a result of its alleged negligence. There was a verdict and judgment for plaintiff. Upon motion the verdict was set aside and a new trial awarded. To review this order writ of error was taken from this court.
Errors are assigned upon (1) the trial court's order extending the time for 15 days from the rendition of the verdict for the presentation by defendant of a motion for new trial, (2) orders subsequently made denying motions of plaintiff to vacate the order extending the time, and (3) the order granting defendant's motion for a new trial. The verdict was returned on February 7, 1923. Judgment was entered on the following day. During the same day, upon motion of counsel, defendant was allowed 15 days from the rendition of the verdict in which to present its motion for new trial. It is not disputed that the order extending the time for making and presenting the motion for new trial was made during the term in open court and within four days after the rendition of the verdict.
It is contended that the court should not have entertained the motion without notice to plaintiff, or his counsel, with an opportunity to be heard in opposition to it. There is nothing in the statute requiring notice of such application and 'cause shown' to be given opposing counsel. Section 2811, Rev. Gen. Stat. Nor is there a rule of court requiring such notice. There is contained in the grounds of the motion for an extension of time a recital that it 'is impossible to file said motion within four days' for the reason that the court reporter would not be able to transcribe his stenographic notes of the proceedings, with defendant's exceptions to rulings during the progress of the trial within that time. The trial court considered the showing made sufficient under the statute and accordingly made the order extending the time for presenting the motion for new trial for 15 days from the rendition of the verdict. It is assumed that in the usual course of procedure notice of such application would be given...
To continue reading
Request your trial