Parradee v. Steed

• Decision Date: 22 April 1937
• Citation: 127 Fla. 769,173 So. 842
• Parties: PARRADEE v. STEED.
• Court: Florida Supreme Court

173 So. 842

127 Fla. 769

PARRADEE v. STEED.

Florida Supreme Court

April 22, 1937

Error to Circuit Court, Osceola County; Frank A. Smith, Judge.

Action by W. J. Steed against Edward Parradee, wherein defendant's writ of error to review a judgment for plaintiff was dismissed. On motion to reinstate.

Motion denied.

See also, 122 Fla. 869, 168 So. 919.

COUNSEL Edward Parradee, in pro. per.

Ellis F. Davis, of Kissimmee, and W. McL. Christie, of Jacksonville, for defendant in error.

OPINION

WHITFIELD Presiding Justice.

On March 30, 1937, a motion was filed by the plaintiff in error in person 'to reinstate the above styled case, on the grounds that' the court 'dismissed the writ of error through a false date in the final decree, and * * * that the writ of error was issued within the legal time for same to be issued.' The action was for damages. Final judgment was rendered and entered October 13, 1934, adjudging $10,000 damages against the defendant in favor of the plaintiff. On April 13, 1935, the court made the following:

'Order on Motion for New Trial

'This cause coming on before me this day to be heard upon Defendant's Motion for a New Trial, duly filed herein, and the Court after argument of counsel for the respective parties in said cause, being fully advised in the premises, is of the opinion that said Motion should not be granted, but that the Plaintiff is not entitled to recover under the pleadings in said cause for special damages arising subsequent to the date of the institution of said suit, in the amount of Fourteen Hundred Ninety Three and ($1493.23) twenty-three one hundreds Dollars.

'It is therefore Ordered, Considered and Adjudged that if the plaintiff in this cause will file with the Clerk of this Court within Twenty-four hours from the date hereof a Voluntary Remittitur in the sum of Fourteen Hundred Ninety-three and ($1493.23) Twenty-three one hundredths Dollars, the Defendant's Motion for a New Trial be, and the same is hereby overruled and denied.

'If the said Plaintiff shall refuse to file within the time stated, the Remittitur in the amount above stated, then the Motion of Defendant for a New Trial, be, and the same is hereby granted. * * *

'Done, ordered, considered, and adjudged in open court in Kissimmee, Florida, on this, the 13th day of April, 1935.

'[Signed] Frank A. Smith

'Judge.'

On May 31, 1935, the following (possibly nunc pro tunc) order dated April 13, 1935, was filed:

'This cause coming on to be heard this day upon the Oral Motion of the Defendant for an order setting the time in which the Bill of Exceptions shall be settled, and same being proper,

'It is, therefore, ordered, adjudged and decreed that the Defendant be, and he is allowed until July 12, 1935, within which to have the Bill of Exceptions settled in this cause.

'Dated at Kissimmee, Osceola County, Florida, this 13th day of April, A. D. 1935.

'[Signed] Frank A. Smith

'Judge'

A writ of error to the judgment was issued by the clerk of the circuit court on October 30, 1935.

The statute provides that a writ of error to a final judgment taken by a person sui juris 'shall be used out and taken within six months from the date of said judgment.' Section 4619 (2909), C.G.L., Simmons v. Hanne, 50 Fla. 267, 39 So. 77, 7 Ann.Cas. 322.

'A writ of error in a civil action, not sued out and taken within the time allowed by the statute, confers upon this court no jurisdiction of the cause. See Hodges v. Moore, 46 Fla. 598, 35 So. 13. Where a writ of error is sued out and taken in a civil action after the time allowed by the statute, and therefore confers upon the appellate court no jurisdiction of the cause, the writ of error should be dismissed. Simmons v. Hanne, 50 Fla. 267, 39 So. 77 ; Bond v. State ex rel. Jarvis, 34 Fla. 45, 15 So. 591;' Eaton v. McCaskill, 53 Fla. 513, text 514, 43 So. 447, 448.

'A trial of an action at law is not concluded, where a motion for new trial is duly made therein, until the motion for new trial is finally disposed of. 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 date of the judgment,' the limitation has reference to the date when the judgment becomes final by an adjudication upon a motion for new trial, where one is duly made and prosecuted in the cause, and not to the date the judgment is in fact entered at the trial under the statute.' McClellan v. Wood, 78 Fla. 407, head notes 1, 2, 83 So. 295. See, also, Morse v. United States, 270 U.S. 151, 46 S.Ct. 241, 70 L.Ed. 518; Louisville Trust Co. v. Stockton, 72 F. 1, 18 C.C.A. 408.

In this case the judgment was entered and motion for new trial was filed October 13, 1934. On April 13, 1935, the motion for new...