Olds v. Alvord
| Citation | 139 Fla. 745,191 So. 434 |
| Parties | OLDS et al. v. ALVORD et al. |
| Decision Date | 20 June 1939 |
| Court | United States State Supreme Court of Florida |
Rehearing Denied Aug. 2, 1939.
Writ of Certiorari Denied Nov. 6, 1939.
See 60 S.Ct. 141, 84 L.Ed.504.
En Banc.
Suit by Dean Alvord and others, owners and taxpayers in the town of Belleair, on behalf of themselves and all other owners of real and personal property in the town, against R. E. Olds and another, officials of the town, to enjoin defendants from attempting to assess or collect any tax to pay principal or interest on certain bonds. A final decree for plaintiff was affirmed by a divided court, 183 So. 711. Subsequently a rehearing was granted and the mandate theretofore issued was recalled, 188 So. 652. Motions were made to set aside the order recalling the mandate.
Motions denied by a divided court.
Original final decree affirmed in so far as decree affects proposed tax to be levied and assessed to produce funds with which to pay principal and interest on certain bond issue; but in all other respects reversed and cause remanded with directions.
On the Merits. Appeal from Circuit Court, Pinellas County; T Frank Hobson, judge.
Edgar John Phillips, Harry L. Thompson, and J. Tweed McMullen, all of Clearwater, for appellants.
Baskin & Jordan, of Clearwater, D. G. Haley, of Sarasota, Mabry Reaves, Carlton & White, of Tampa, and Milam, McIlvaine & Milam, of Jacksonville, for appellees.
Dickenson & Dickenson, of Tampa, Hull, Landis & Whitehair, of DeLand, and Storey, Thorndike, Palmer & Dodge, of Boston, Mass., as amici curiae.
After the mandate had been recalled and rehearing granted in this cause, by an order of December 6, 1938, 188 So. 652, counsel for appellees on January 10, 1939, filed a motion
'To set aside and strike from its records the pretended order entered in said cause on December 6, 1938, whereby
'(1) the Clerk of the Circuit Court of Pinellas County was directed to return to the Clerk of this Court the mandate therefore issued in said cause;
'(2) The extraordinary petition of appellants for rehearing was attempted to be granted; and
'(3) the cause was directed to be submitted in due course,' the grounds of the motion being stated.
On March 20, 1939, the Court made the following order in this cause:
'This cause having been submitted to the Court upon motion of Counsel for Appellees to set aside and strike from its record the order entered therein on December 6, 1938, which motion has been argued by Counsel for the respective parties and duly considered by the Court, it is thereupon ordered by the Court that the above styled cause be set down for oral argument on the merits at 10:00 o'clock A. M. Monday, March 27th, instant.'
On June 1, 1939, counsel for appellees filed a motion 'to cease reconsidering the said cause on its merits and desist from further reconsideration thereof, to set aside and strike from its records the order of December 6, 1938, made by three Judges only of this Honorable Court whereby a rehearing was attempted to be granted, and to return to the lower court the mandate of this Honorable Court heretofore issued.'
One of the grounds of the motion is that 'If this Honorable Court should reach the conclusion that the decree appealed from should be reversed, the Court would be without power to enter a decree of reversal since to do so would take the property of Appellees--to-wit: the decree appealed from and the rights of Appellees thereunder--without due process of law, contrary to and in violation of Section 12 of the Declaration of Rights and the Fourteenth Amendment to the Constitution of the United States, * * *.'
The Court having duly considered said motions filed in this cause on January 10, 1939, and June 1, 1939, it is now ordered by the Court that each of such motions be and is hereby denied because the Court is evenly divided and the motions could only be granted by the affirmative action of the majority of the Court participating in the disposition of such motion.
CONCURRING
This opinion deals with the jurisdictional question raised by the motion filed by the appellees on January 10, 1939, to strike the order of this court rendered December 6, 1938, recalling the mandate and granting the extraordinary petition for rehearing on the merits, which had been filed on October 12, 1938; also the motions recently filed by appellees, on June 1st and 6th, respectively, asking the court to desist from reconsideration of the cause; all of said motions of appellees being based upon the theory that this court had lost jurisdiction of the case when the order of December 6, 1938 was entered, by reason of the fact that the court had theretofore, on October 11, 1938, denied the petition for rehearing, which had been filed during the preceding (January) term, and the mandate had gone down on October 13, 1938, the contention being that this order of October 11, 1938, irrevocably terminated the jurisdiction of this Court.
The writer was very much impressed by the motion filed by appellees on January 10, 1939, and the arguments of able counsel in support of same, and gave the matter considerable study.
The original judgment of affirmance in this case was rendered on March 29, 1938, during the January term of that year. A petition for rehearing was duly filed which remained undisposed of at the end of that term. The court entered its usual order continuing and carrying over into the June term, 1938, all pending causes and business before the court which remained undisposed of. So this case was carried over into the June term of 1938. Early in that term, on June 18, 1938, the petition for rehearing submitted during the preceding term was denied, but four days later such order of denial was vacated by this court, thus leaving the petition for rehearing still pending undisposed of. On October 11, 1938, during the same term, the petition for rehearing was again considered and an order entered denying it, and two days later the mandate to the lower court was sent down. On October 12, 1938, an extraordinary petition for rehearing was filed, and a few days later a petition for the recall of the mandate was filed. On December 6, 1938, an order was made recalling the mandate, and granting a rehearing of the case on the merits, upon the second petition for rehearing.
Under the case of State ex rel. Davis v. City of Avon Park, 117 Fla. 556, 151 So. 701, there would have been no question about the retention of jurisdiction if the order of December 6, 1938, had contained a clause expressly vacating the previous order of October 11, 1938, but I am inclined to the opinion that in spite of this formal omission, the legal effect of the order of December 6, 1938, was to vacate and nullify the order of October 11, 1938. There is considerable reputable authority in support of the proposition that a former order or judgment of a court may be impliedly vacated by a subsequent order or judgment, entered during the same term, that is clearly inconsistent therewith, or that is clearly inconsistent with the continuance in force and effect of the former order or judgment.
The case of Chapman v. St. Stephens Protestant Episcopal Church, 105 Fla. 683, 136 So. 238, 138 So. 630, 139 So. 188, 145 So. 757, 84 A.L.R. 566, is strong authority for the proposition that, in spite of the fact that an order or judgment may have been rendered and the mandate sent down to the lower court during the current term, and the usual time for rehearing having expired, or having been applied for and denied in due course, nevertheless the power of an appellate court over its orders and judgments persists to the end of the term at which such order or judgment is rendered; that during the term at which an order or judgment is rendered, the court has the jurisdiction and power, which it may exercise as the circumstances and justice of the case may require, to reconsider, revise, reform or modify its own order or judgment for the purpose of making the same accord with law and justice, and that to that end it has the power to recall its own mandate after the same has been sent down to the trial court pursuant to such former order or judgment.
I do not think there can be any doubt about the proposition that a case can be carried over from one term to the ensuing term by the pendency of a petition for rehearing which remains undisposed of. This has been the practice and holding of this Court for many years. The Avon Park case, supra, held that the general rule that the power of a court over its orders and judgments terminates when the term at which they were rendered expires is modified in this State, as to cases in the Circuit Court, by the statute permitting the Court to entertain and act upon a motion for new trial presented within the statutory period, and as to cases in the Supreme Court by its long established rule permitting the filing of petitions for rehearing within fifteen days after rendition of judgment.
In the case of State ex rel. Davis v. City of Avon Park, supra, a case of original jurisdiction, it was held that where a petition for rehearing was filed during the following term but within the fifteen days from the date of the judgment which is allowed by the rule for the filing of such petitions, this carried the case over into the subsequent term, in spite of the fact that the judgment to which the petition was addressed was rendered during the preceding term; and that although such petition for rehearing was subsequently denied during such following term, ...
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