Kippy Corp. v. Colburn, No. 32879
| Court | United States State Supreme Court of Florida |
| Writing for the Court | O'CONNELL; Under any view it seems certain that the decree appealed from, the Second Amended Final Decree, can be considered to be the final decree on the merits in this cause only if the chancellor had the power; DREW; THORNAL |
| Citation | 177 So.2d 193 |
| Docket Number | No. 32879 |
| Decision Date | 30 June 1965 |
| Parties | The KIPPY CORPORATION, Talbot W. Trammell, Dempsey Transportation, Inc., Charles C. Papy, Jr., Alex Mathas, David Katz and Carl Katz, individually and as father and next friend of David Katz, a minor, and John Laez, and McMurry & Co. of Tampa, Petitioners, v. Sherwood COLBURN, Insurance Commissioner of the State of Michigan, as Receiver of Michigan Surety Company, Highland Realty Co., Carey, Goodman, Terry & Dwyer, Springer Motor Co. and Hollywood Bus Lines, Inc., Respondents. |
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v.
Sherwood COLBURN, Insurance Commissioner of the State of Michigan, as Receiver of Michigan Surety Company, Highland Realty Co., Carey, Goodman, Terry & Dwyer, Springer Motor Co. and Hollywood Bus Lines, Inc., Respondents.
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Talbot W. Trammell and Kenneth L. Ryskamp, Miami, for petitioners.
Stephen W. Sessums (of Albritton, Sessums & Gordon, Tampa), for respondents.
ON PETITION FOR REHEARING GRANTED
O'CONNELL, Justice.
The petitioners, who were appellees in the District Court of Appeal, seek review by certiorari of that decision reported as Colburn v. Highland Realty Co., Fla.App.1963, 153 So.2d 731. We agree with petitioners that we have jurisdiction to review this cause because of a conflict in decisions to be discussed later.
The facts necessary to our decision are taken from the published report of the District Court's opinion. In chronological order they are:
On March 8, 1962, pursuant to a decree pro confesso previously taken, the chancellor entered a final summary decree against Colburn, et al., the respondents-defendants, referred to herein as Colburn.
On March 14, Colburn petitioned for and the chancellor issued an order staying performance and enforcement of the decree in order to give Colburn an opportunity to petition to vacate the decree pro confesso entered against him.
On March 16, Colburn filed such a petition which was denied by an order entered April 24th.
On May 25, acting on the plaintiffs' motions, the chancellor entered an order vacating the stay order and at the same time entered a 'Second Amended Summary Final Decree.' This decree provided that the decree of March 8th 'be and it is hereby amended in its entirety as follows:'. Then followed a full and complete final decree substantially identical with that one dated March 8th, except that sums of money which had accrued during the interim were recomputed to the date of the latter decree.
On June 22, 1962, Colburn filed a notice of appeal addressed to the 'Second Amended Summary Decree' dated May 25th and rendered, i.e., filed for record on May 28th.
As noted in the District Court's opinion, these petitioners moved to dismiss the appeal in that court. The court denied the motion to dismiss and then proceeded to review the merits of the Second Amended Summary Final Decree as if it were the final decree in the cause.
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We have no difficulty in agreeing with the District Court that the appeal was taken to that court within 60 days of the rendition of the decree of May 25th. It was also taken within 60 days of the entry of the decree of March 8th, because the timely filing of the petition to vacate the decree pro confesso prevented that decree becoming absolute and tolled the running of the appeal time until that petition was denied on April 24th. But this discussion is academic, for the respondent Colburn appealed from the decree of May 25th and not that of March 8th.
The question here is not whether the notice of appeal was timely filed. Rather, it is whether the chancellor, some 30 days after denial of the petition to vacate, at which time the decree of March 8th had under the rules become absolute, still had the power, authority and jurisdiction to set aside that decree and enter a new one in its stead.
In its opinion the District Court held that the chancellor did have the authority to vacate the first decree and enter the new one under these circumstances. That court recognized that a final decree based upon a decree pro confesso becomes absolute 10 days after entry, Rule 3.10 F.R.C.P., 31 F.S.A., and that decrees in general become absolute after expiration of the 10-day period for filing a petition for rehearing. Rule 3.16 F.R.C.P. However, the District Court held that the order staying performance and enforcement of the decree of March 8th had the effect of tolling the time within which the first decree would become absolute. Therefore, said the District Court, 'the former decree had not become absolute when the latter one was entered, and the lower court had jurisdiction to enter it.'
Under any view it seems certain that the decree appealed from, the Second Amended Final Decree, can be considered to be the final decree on the merits in this cause only if the chancellor had the power, authority and jurisdiction to vacate the first decree and enter the second one. It is equally certain that the chancellor possessed this authority only if the District Court was correct in holding that the stay order had the effect of preserving his jurisdiction over the first decree and preventing its becoming absolute.
The basic question therefore is whether an order staying performance and execution of a final decree has the effect of preventing the final decree from becoming final and absolute and accordingly extending the time within which the trial court may exercise jurisdiction over the final order by altering, modifying, or vacating it. The District Court held that a stay order has this effect. We have previously held that such an order does not, as will be explained below.
The only authority under rule or statute known to us for entry of a stay order is that found in Rule 3.16 F.R.C.P. It seems likely because of the facts of this case that the chancellor relied upon this rule in entering the stay order here involved, but the result would have been the same had he operated on a theory of inherent power.
In Ganzer v. Ganzer, Fla.1956, 84 So.2d 591, this Court had occasion to consider the effect of such a stay order. In that case we said 'the purpose of a stay order provided for in Rule 3.16, supra, is to regulate the enforcement of the decree in the trial court. It does not pertain to nor affect appellant proceedings.' This statement requires analysis in order to savor its full flavor.
The statement that a stay order does not affect appellate proceedings has to mean that it neither prevents an appellate court from taking jurisdiction of the order stayed, nor tolls nor interrupts the running of the time for appeal. The test by which we determine when a final order is subject to appellate review is its finality. Finality in turn is determined by whether the judicial labor required or permitted to be done by the trial court has been performed. As
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we explained in the Ganzer case, supra, a final decree is not appealable until after a timely petition for rehearing is ruled upon because 'the judicial labor has not been completed.'It follows then that...
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Francisco v. Victoria Marine Shipping, Inc., No. 85-911
...the time and manner provided by rule or statute. Shelby Mutual Insurance Co. v. Pearson, 236 So.2d 1 (Fla.1970); Kippy Corp. v. Colburn, 177 So.2d 193 (Fla.1965); Fidelity & Casualty Co. v. Palomino, 394 So.2d 448 (Fla. 3d DCA), rev. denied, 402 So.2d 609 (Fla.1981). Under the present r......
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Caufield v. Cantele, No. 98-2960.
...v. Tutson, 139 Fla. 405, 190 So. 675 (1939). 2. See Bowman v. Corbett, 556 So.2d 477 (Fla. 5th DCA 1990). 3. Kippy Corp. v. Colburn, 177 So.2d 193 (Fla. 1965); Nichols v. Michael D. Eicholtz Enterprises, Inc., 706 So.2d 70 (Fla. 5th DCA 1998); City of Tallahassee v. Big Bend PBA, 703 So.2d ......
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Connor v. State, No. 5D05-3994.
...may not modify, amend, or vacate an order of final judgment except as provided by rule or statute.") (citing Kippy Corp. v. Colburn, 177 So.2d 193 (Fla.1965)); Watson v. State, 633 So.2d 1171, 1173 (Fla. 3d DCA) ("[I]t is well settled that a court has control over its judgments an......
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Deltona Corp. v. Bailey, No. 49053
...Clearly the opinion ws not final until the order on petition for rehearing was filed on December 9, 1974. See Kippy Corp. v. Colburn, 177 So.2d 193, 195 (Fla.1965); State ex rel. Owens v. Pearson,156 So.2d 4, 7 (Fla.1963). To the argument, based on Gulesian and Conboy, supra, that the Inter......
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Francisco v. Victoria Marine Shipping, Inc., No. 85-911
...the time and manner provided by rule or statute. Shelby Mutual Insurance Co. v. Pearson, 236 So.2d 1 (Fla.1970); Kippy Corp. v. Colburn, 177 So.2d 193 (Fla.1965); Fidelity & Casualty Co. v. Palomino, 394 So.2d 448 (Fla. 3d DCA), rev. denied, 402 So.2d 609 (Fla.1981). Under the present r......
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Caufield v. Cantele, No. 98-2960.
...v. Tutson, 139 Fla. 405, 190 So. 675 (1939). 2. See Bowman v. Corbett, 556 So.2d 477 (Fla. 5th DCA 1990). 3. Kippy Corp. v. Colburn, 177 So.2d 193 (Fla. 1965); Nichols v. Michael D. Eicholtz Enterprises, Inc., 706 So.2d 70 (Fla. 5th DCA 1998); City of Tallahassee v. Big Bend PBA, 703 So.2d ......
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Connor v. State, No. 5D05-3994.
...may not modify, amend, or vacate an order of final judgment except as provided by rule or statute.") (citing Kippy Corp. v. Colburn, 177 So.2d 193 (Fla.1965)); Watson v. State, 633 So.2d 1171, 1173 (Fla. 3d DCA) ("[I]t is well settled that a court has control over its judgments an......
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Deltona Corp. v. Bailey, No. 49053
...Clearly the opinion ws not final until the order on petition for rehearing was filed on December 9, 1974. See Kippy Corp. v. Colburn, 177 So.2d 193, 195 (Fla.1965); State ex rel. Owens v. Pearson,156 So.2d 4, 7 (Fla.1963). To the argument, based on Gulesian and Conboy, supra, that the Inter......
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Zooming In on the Impact Florida's Remote Civil Jury Trials May Have on Appellate Standards of Review.
...2d 1221, 1223 (Fla. 1986) ("A trial judge is deprived of jurisdiction...by the sheer finality of the act...."); Kippy Corp. v. Colburn, 177 So. 2d 193, 196 (Fla. 1965) (an important aspect of the judicial process includes finality); Mary E. Adkins, The Unblinking Eye Turns to Appellate Law:......