Picot v. Picot

• Decision Date: 29 March 1937
• Citation: 127 Fla. 591,173 So. 433
• Parties: PICOT v. PICOT.
• Court: Florida Supreme Court

173 So. 433

127 Fla. 591

PICOT v. PICOT.

Florida Supreme Court

March 29, 1937

Proceeding between Elsie Picot and Frank W. Picot. From a decree for the latter, the former appeals. On motions to amend the entry of appeal and dismiss the appeal.

Motion to amend denied and motion to dismiss granted. Appeal from Circuit Court, Dade County; Worth W Trammell, judge.

COUNSEL

James M. Carson, of Miami, and Lewis W. Petteway, of Tallahassee for appellant.

A. J Rose, of Miami, for appellee.

OPINION

PER CURIAM.

Where a notice of entry of appeal in a chancery case has been filed under section 4964, C.G.L., section 3172, R.G.S., section 4965, C.G.L. section 3173, R.G.S., contemplates that a return day for such appeal shall be specified therein and that such return day shall be 'more than' thirty days and not more than ninety days from the date of entry of appeal, else the entry of appeal is insufficient and the appeal will be dismissed.

Amendments to entries of appeal in the appellate court are permissible but an amendment cannot be allowed after the expiration of the time limited by law for taking appeals. This is so, because by the expiration of the time limited by law for taking an appeal in the first instance, the potential jurisdiction of the appellate court over the subject-matter of the appeal terminates, and the appellate court is then no longer possessed of authority to permit an amendment that would be in the nature of a new appellate process beyond the competence of the court to issue for the purpose of bringing the matter appealed and the parties to it, into the appellate court. See Driggs v. Higgins, 19 Fla. 103; Lowe v. De Laney, 54 Fla. 480, 44 So. 710; Brooks v Miami Bank & Trust Co., 115 Fla. 141, 155 So. 157; Ayers v. Daniels, 67 Fla. 482, 65 So. 660; McJunkins v. Stevens, 88 Fla. 559, 102 So. 756; Spencer v. Travelers' Ins. Co., 39 Fla. 677, 23 So. 442; Arnold v. Boyce, 97 Fla. 484, 121 So. 472, 122 So. 117; Ates v. Langley, 61 Fla. 504, 54 So. 264; Gadsden v. State, 76 Fla. 543, 80 So. 308; East Coast Lumber Co. v. Walter Walton Co., 87 Fla. 326, 100 So. 738; Buck v. All Parties, etc., 86 Fla. 86, 97 So. 313; Anderson v. State, 73 Fla. 86, 74 So. 6; DeBogory v. Hafleigh, 81 Fla. 631, 88 So. 470.

In this case the notice of entry of appeal was filed on December 11, 1936, to a final decree entered on July 31, 1936. The entry of appeal was recorded in the chancery order book on December 12, 1936, and, as recorded, specifies the return day of the appeal as being March 2, 1936, an obviously impossible and consequently unauthorized, return day, made so, no doubt, through a typographical error which changed the date from March 2, 1937, the intended date, to March 2, 1936, the erroneous date.

Considering that the fact of typographical error is established, and conceding also that no one has in fact been misled by the clerical misprision that has occurred, and that the transcript of the record has been duly prepared and filed in the Supreme Court before March 2,...