Mead v. Bentley
| Decision Date | 14 November 1952 |
| Parties | MEAD v. BENTLEY et al. |
| Court | Florida Supreme Court |
Clayton, Arnow, Duncan & Johnston, Gainesville, for appellant.
Bentley & Shafer, Lakeland, for appellees.
Bentley and Shafer, who are attorneys at law, instituted this action against Ralph V. Mead. In their complaint they allege that Mead, through his duly authorized agent, had employed them to represent him in connection with a General Court Martial judgment and sentence entered against him while a member of our armed forces stationed in Italy during World War II. Mead filed an answer denying the alleged employment. Upon a trial the verdict of the jury was in favor of Mead. Appellees herein made a motion for enlargment of time within which to file a motion for a new trial which motion was granted. A motion for a new trial was filed with the Clerk of the Court within the extended period of time allowed by the Court for that purpose. The motion for new trial was not presented to, or filed with, the judge nor, so far as the transcript of record discloses, was it or the reasons therefor placed on the motion docket prior to the expiration of the period allowed by the court within which appellees might file the motion for a new trial.
The court denied a motion to strike the motion for a new trial which motion to strike was predicated upon the ground that said motion had not been seasonably presented to the trial judge in person. The said judge entertained the motion for a new trial and granted said motion upon the ground that the verdict of the jury was contrary to the weight of the evidence. Mead then instituted this appeal.
Two questions are presented for our consideration: (1) Under 30 F.S.A. Common Law Rule 41 is it necessary that a motion for a new trial in a common law action be actually presented personally to, and filed with, the trial judge, or is the filing of such a motion with the Clerk of the Court sufficient compliance with new Common Law Rule 41? (2) Did appellant make the strong showing required of him to convince this Court that the trial judge committed error in granting the motion for a new trial?
The first of the two questions posed for our consideration has been resolved adversely to appellant's contention by our opinion in the case of Hillsboro Plantation, Inc. v. Plunkett, 59 So.2d 872. In that case we cited the several decisions of this Court in which we interpreted Section 54.24, F.S.A. This statute was in effect prior to the time that it was superseded by Rule 41 of Florida Common Law Rules. Said rules became effective January 1, 1950. We determined in the aforementioned case to recede from our prior holdings to the effect that it was necessary that a motion for a new trial in a common law action be presented personally to, and filed with, the trial judge and that if this were not done the trial court would not have jurisdiction to entertain the motion for a new trial. We gave our reasons for placing a new and different construction upon Rule 41 of the Florida Common Law Rules than that which we had given to Section 54.24, F.S.A.
We compared Rule 41, supra, with Section 54.24, supra, and decided that there was no real or substantial difference in the language used in each of them. In this case appellees have directed our attention to the significant fact that Common Law Rule 41 does not contain the following wording, which did appear in Section 54.24, F.S.A.:
'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.' (Italics supplied.)
Section (c) of Common Law Rule 41 provides 'The party calling the motion up for a ruling shall give his adversary 3 days' notice of the time and place that the same will be heard.' (Italics supplied.) Thus it will be seen that under ...
To continue reading
Request your trial
-
State v. Hodges, 62-765
...it is directed to the sound, broad discretion of the trial judge, Poindexter v. Seaboard Air Line R. Co., Fla., 56 So.2d 905, Mead v. Bentley, Fla., 61 So.2d 428, who because of his contact with the trial and his observation of the behavior of those upon whose testimony the finding of fact ......
-
Bennett v. Jacksonville Expressway Authority, 30990
...it is directed to the sound, broad discretion of the trial judge, Poindexter v. Seaboard Air Line R. Co., Fla., 56 So.2d 905, Mead v. Bentley, Fla., 61 So.2d 428, who because of his contact with the trial and his observation of the behavior of those upon whose testimony the finding of fact ......
-
Hodge v. Jacksonville Terminal Co., 38810
...it is directed to the sound, broad discretion of the trial judge, Poindexter v. Seaboard Air Line R. Co., Fla., 56 So.2d 905; Mead v. Bentley, Fla., 61 So.2d 428, who because of his contact with the trial and his observation of the behavior of those upon whose testimony the finding of fact ......
-
Cloud v. Fallis
...it is directed to the sound, broad discretion of the trial judge, Poindexter v. Seaboard Air Line R. Co., Fla., 56 So.2d 905, Mead v. Bentley, Fla., 61 So.2d 428, who because of his contact with the trial and his observation of the behavior of those upon whose testimony the finding of fact ......