Kent v. Marvin

• Decision Date: 21 May 1952
• Citation: 59 So.2d 791
• Parties: KENT et al. v. MARVIN et al.
• Court: Florida Supreme Court

Page 791

59 So.2d 791

KENT et al. v. MARVIN et al.

Supreme Court of Florida, Special Division A.

May 21, 1952.

Rehearing Denied July 1, 1952.

Walton, Hubbard, Schroeder, Lantaff & Atkins, Miami, for appellant Leslee Kent.

Ellis & Spencer, Hollywood, J. B. Patterson, Fort Lauderdale, and Robert F. Underwood and Knight, Smith & Underwood, Miami, for appellant Fred C. Elmlinger.

Landefeld & Kerr, Hollywood, and Fleming, O'Bryan & Fleming, Fort Lauderdale, for appellees.

PER CURIAM.

Motion to dismiss denied without opinion.

On Petition for Rehearing.

HOBSON, Justice.

Counsel for appellees filed a motion to dismiss this appeal on the ground that the appeal was taken from a final judgment which was entered by the court below on November 13, 1951, and the notice of appeal was not filed until February 23, 1952. Obviously this notice of appeal was filed more than sixty (60) days from and after entry of the final judgment. Counsel cite as authority for their contention the cases of Lauderdale-by-the-Sea Development Co. v. Lauderdale S. & Y. Estates, 160 Fla. 929, 37 So.2d 364, 10 A.L.R.2d 1072; Dustin v. Latzko, 155 Fla. 824, 21 So.2d 904; Cates v. Heffernan, 154 Fla. 422, 18 So.2d 11; Sirman v. Conklin, 154 Fla. 304, 17 So.2d 298, and on Petition for Rehearing our attention is called to the case of Wolf v. Cleveland Electric Co., Inc., Fla., 58 So.2d 153.

We denied the motion to dismiss without opinion. This is a common-law action and a motion for new trial was timely filed. The motion was not heard until January 17, 1952, on which date said motion was denied.

The question presented is whether the timely filing of a motion for a new trial in a common-law action tolls the running of the sixty day period within which an appeal may be taken as provided in Section 59.08, F.S.A.

All of the cases initially cited by counsel for appellees dealt with appeals in chancery cases taken from final decrees or from interlocutory orders, except the case of Cates v. Heffernan, supra, in which we considered Chapter 20361, Acts of 1941, F.S.A. § 33.11, which limits the time for taking appeals from Civil Courts of Record to the Circuit Court, in Circuits having more than four Circuit Judges, to one calendar month after the entry of the judgment or the order granting or denying the motion for new trial. Patently that case is not in point except that it reaffirms the well established, if not apodictic, rule that an appellate court does not acquire jurisdiction of the subject matter of an appeal unless the appeal is taken within the period required by law. We need not discuss those cases which dealt with causes originating in courts of equity because Section 63.71 F.S.A. [repealed by chapter 26962 Laws of Florida, 1951, but replaced or superseded by New Equity Rule 71, 30 F.S.A., which is identical], specifically provided that in chancery cases 'No petition for rehearing shall operate to stay the proceedings unless so ordered by the court.'

The case of Wolf v. Cleveland Electric Company was a common-law action. However, final judgment was entered in that case on November 24, 1950, and it was not until January 12, 1951, that a petition denominated 'Petition for Rehearing' was filed. We do not find any provision which allows the filing of a petition for rehearing in a common-law action after the entry of final judgment. Had this petition for rehearing been filed within the time permitted by 30 F.S.A. Rule 41(b) of the New Florida Common Law Rules for filing a motion for a new trial, we might have considered it as such a motion. However, since there is no provision for the filing of a petition for rehearing in a common-law action, and in view of the fact that said ill-begotten petition cannot be treated as a motion for a new trial, there was actually nothing before the lower court and nothing to be brought before this Court except the final judgment entered November 24, 1950. Consequently, that case cannot be relied upon as authority for the proposition that the timely filing of a motion for a new trial in a common-law action does not toll the running of the period provided by statute within which an appeal must, if ever, be taken.

Upon a careful consideration of Section 59.08 F.S.A., and those statutory provisions from which it emanated, as well as the suggestion made by counsel that the 1945 Legislature consolidated Section 67.03, F.S.A., which dealt with appeals in chancery, with Section 59.08, F.S.A., we find no reason to depart from the ruling made by this Court in Parradee v. Steed, 127 Fla. 769, 173 So. 842, and cases therein cited, in which case we quoted with approval our pronouncement in McClellan v. Wood, 78, Fla. 407, 83 So. 295, to-wit:

''Under the statutory provisions that 'writs of error shall lie only from final judgments,' and that adjudications of motions for new trial shall be entered in the minutes of the court, and that writs of error shall be taken within six months 'from the...