Howland v. Cates

• Decision Date: 29 November 1949
• Citation: 43 So.2d 848
• Parties: HOWLAND v. CATES.
• Court: Florida Supreme Court

Page 848

43 So.2d 848

HOWLAND v. CATES.

Supreme Court of Florida, Division B.

Nov. 29, 1949.

Rehearing Denied Feb. 6, 1950.

Sam E. Murrell and Sam E. Murrell, Jr., Orlando, for appellant.

M. W. Wells, R. F. Maguire, Jr., Maguire, Voorhis & Wells, Orlando, and Ernest F. Householder, Sanford, for appellee.

SEBRING, Justice.

The plaintiff instituted a suit to recover for the wrongful death of his wife as the result of the alleged negligent operation of a motor vehicle by the defendant. The case was tried on the declaration and pleas of not guilty and contributory negligence. After all the evidence was in, the trial court indicated that a motion for a directed verdict would be granted in favor of the defendant because of the fact that the evidence showed as a matter of law that the decedent has contributed to her own injury. The plaintiff thereupon elected to take a 'non-suit with bill of exceptions' and thereafter prosecuted an appeal to this court. After a careful consideration of the record a majority of the court reached the conclusion that the issue of contributory negligence should have been submitted to the jury, and sent the case back for a new trial. See Howland v. Cates, 160 Fla. 275, 34 So.2d 562. The second trial resulted in a jury verdict in favor of the defendant and the plaintiff has appealed from the judgment entered thereon.

The first contention of the plaintiff is that the trial court committed reversible error in entering an order granting a motion to strike his motion for new trial.

The record reveals that the verdict in favor of the defendant was rendered on November 17, 1948. On November 22, 1948, five days after the rendition of the verdict but within the term, the trial judge, with the consent of the defendant, entered an order allowing the plaintiff to and including December 2, 1948 within which to make and present a motion for new trial. The motion for new trial was filed with the circuit judge on December 2, 1948 and by him marked 'presented before me December 2, 1948', and a copy of the motion was served on the defendant on the same day. Subsequently, on December 22, 1948 the defendant filed a motion to strike the motion for new trial, on the ground 'that at no time within fifteen * * * days prior * * * to December 2, 1948, nor at any time [prior] * * * to November 17, 1948, (the date on which verdict for defendant was rendered) has the defendant or his attorneys been served with 'three days' notice of the time and place that the [motion for new trial] * * * will be presented and heard [by the trial judge, as required by section 54.24, Florida Statutes, 1941, F.S.A.].'

On December 23, 1948 the plaintiff mailed to defendant's counsel a notice that the motion for new trial would be called up for hearing before the trial judge on January 4, 1949. On this latter date the trial judge granted the motion to strike the motion for new trial, and it is the order entered on the motion that is assigned as error.

It is plain to us that under the controlling decisions the trial judge did not commit reversible error in entering the order on the motion to strike. A case in point is Bishop v. Chillingworth, 120 Fla. 740, 163 So. 93, 94. There it appears that a verdict was rendered in favor of the plaintiffs on February 9, 1933 and that on February 13, 1933 the defendants made their motion for an extention of time to file and present their motion for new trial. The motion was granted and an order was entered accordingly allowing the defendants until February 20, 1933 to file, make and present their motion for new trial. On February 20, 1933 defendants made and filed with the clerk of the circuit court their motion for a new trial.

On February 25, 1933 the defendants gave the plaintiffs notice of a hearing on the motion for new trial before the trial judge for March 1, 1933. The trial judge could not hear the motion on the date set and postponed the hearing until March 8, 1933. On that date the motion for new trial was presented to the trial judge pursuant to the notice theretofore given the plaintiffs, whereupon the plaintiffs presented their counter motion to strike defendant's motion for a new trial on the ground, among others, that no copy of the motion for new trial, together with three days' notice of the time when, and the place where, same would be presented and heard, had been served on plaintiffs or their counsel, as required by the statute regulating the filing and presentation of motions for new trial. See Section 4498(2811), C.G.L., 54.24, Florida Statutes 1941, F.S.A. The motion to strike the motion for new trial was granted, and on review of the order by this court it was held:

'The statute provides:

"Motions for new trials in civil cases shall be made within four days after the rendition of the verdict and during the same term, but the judge upon cause shown may, within such four days and during the same term, by order extend the time for the making and presentation of such motions, not to exceed fifteen days from the rendition of the verdict. In all cases of extension of time for making such motions, a copy of the motion to be presented to the judge shall be served on the opposite party, or his attorney, with three days' notice of the time and place that the same will be presented and heard.' * * *

'The affidavit of plaintiff's counsel states that the motion and notice of its presentation and hearing was not served on plaintiff or any of his attorneys previous to February 25, 1933.

'If the required copy of the motion with three days' notice of the presentation of the motion to the judge on February 20, 1933, had been duly served before February 20, 1933 [the date to which the trial judge had extended the time for filing and presenting the motion for new trial], the hearing at a later date would not have rendered the motion ineffective.

'In so far as the statute regulates the making and presentation of motions for new trials, a compliance with such regulations is a prerequisite to the effectiveness of such motions. The principle just stated extends to a service of a copy of the motion and to the three days' notice required of the presentation. Due presentation of the motion to the judge includes the notice required to be given of the presentation and a service of a copy of the motion to be presented. Even if such service of copy and notice was intended only for the benefit of the opposite party, and may be waived, such opposite party has not waived the statutory requirement, of due presentation, but insisted that the statute was not complied with, and that the motion should be stricken. * * *

'The service of notice on February 25, 1933, of a hearing on the motion March 1, 1933, did not cure the failure to serve a copy of the motion and a notice of its presentation to the judge three days before February 20, 1933, the day fixed by order under the statute 'for the making and presentation of such motion.'

'The court is not shown to have erred in striking the motion for new trial.' See also DeSoto Holding Co. v. Boyer, 85 Fla. 517, 97 So. 205; Warner v. Goding, 91 Fla. 260, 107 So. 406; Citizens' Bank v. Williams, 91 Fla. 589, 110 So. 252; Adams v. Wolf, 103 Fla. 547, 137 So. 705.

The motion for new trial having been properly stricken by the trial judge the question arises as to what assignments of error, if any, may be considered by this court on this appeal.

Section 54.24, Florida Statutes 1941, F.S.A., provides that 'In motions for new trials it shall not be necessary to incorporate any matter in pais previously excepted to, for the purpose of having the same reviewed by the appellate court.' Section 59.07, Florida Statutes, 1941, as amended by section 7, chapter 22854, Acts of 1945, F.S.A. § 59.07, provides:

'(1) Adverse rulings.--Upon all appellate proceedings the appellate court shall review, without exception having been taken at the trial, any question of law involved in any adverse ruling, order, instruction or thing whatsoever said or done at the trial or prior thereto or after verdict, which thing was said or done after objection made and considered by the trial court, and which affected the substantial rights of the party complaining and which is assigned as error and thereupon the appellate court may reverse, affirm or modify the judgment, decree or order appealed from, and may set aside, affirm, or modify any and all the proceedings, decree or order, and may, if proper, order a new trial or rehearing.

'(2) Jury instructions.--It shall not be necessary for a party to object to the giving of any charge by the court or to the refusal to give any charge requested in writing.'

When these statutes are construed together, as we think they must be, it is plain that while prior to the enactment of chapter 22854 it was necessary for the losing party to except to adverse rulings...