Ramagli Realty Co. v. Craver

• Decision Date: 08 June 1960
• Citation: 121 So.2d 648
• Parties: RAMAGLI REALTY CO., a Florida corporation, Petitioner, v. Franklin CRAVER, Respondent,
• Court: Florida Supreme Court

Page 648

121 So.2d 648

RAMAGLI REALTY CO., a Florida corporation, Petitioner, v. Franklin CRAVER, Respondent,

Supreme Court of Florida.

June 8, 1960.

Rehearing Denied July 5, 1960.

Brigham, Wright, Dressler & Rearick, Miami, for petitioner.

Hamilton, Nason & Williams, West Palm Beach, and Guion T. DeLoach, Coral Gables, for respondent.

DREW, Justice.

The petition for certiorari in this cause asserts, among other things, that the decision of the district court of appeal is in direct conflict with decisions of this Court ¹ which hold that an appellate court is without jurisdiction to entertain an appeal from a final judgment in an action at law filed more than sixty days after the rendition of such final judgment. Other conflicts are alleged in the petition for certiorari and are argued in the briefs of counsel. In view of our conclusion that the district court was without jurisdiction in the premises, it is unnecessary to discuss the other questions presented.

The Constitution provides that district courts shall have jurisdiction of appeals from trial courts from final judgments ² and from such interlocutory orders as shall be prescribed by rule of the Supreme Court. ³ In accordance with this constitutional provision, a rule was adopted by the Supreme Court which provided that appeals from final judgments shall be commenced within sixty days from the rendition of such final judgment, ⁴ unless some other period of time is specifically provided by statute or rule. ⁵ The statutes of this State contain a similar provision. ⁶ Supreme Court rules prescribe that appeals from interlocutory orders at common law are limited to orders relating to venue or jurisdiction over the person. ⁷ Other interlocutory orders rendered in common law actions may be reviewed only on an appeal prosecuted from the final judgment. ⁸ Orders entered after final judgment may be reviewed by certiorari. ⁹

The rules of this Court provide that a judgment is rendered when reduced to writing, signed and made a part of the record or, if recording is not required, when it has been filed. ¹⁰ The rule further provides that where there has been a timely and proper motion or petition for new trial, rehearing or reconsideration by the trial court, the questioned order shall not be deemed rendered until such motion or petition is disposed of. A motion for new trial not filed within the time prescribed by statute or rule or any motion or petition not authorized by statute or rule does not toll the time within which an appeal must be taken. ¹¹

In an unbroken line of decisions, we have held that we are without jurisdiction to entertain or decide a case brought before us on appeal taken more than sixty days after the rendition of the judgment appealed from. ¹² We have held on numerous occasions that, after the time for filing a timely and proper motion for new trial or petition for rehearing, the trial court may not directly or indirectly take any action to stay the running of the time within which the appeal must be taken. A trial court has no power to extend the time for taking an appeal nor may it, even with the consent of the parties, amend its decree or judgment to take effect at a later date for the purpose of extending the appeal. ¹³ The orderly administration of justice requires that there be an end to litigation and the Legislature of this State has provided that certain periods of time shall be allowed to obtain a review of final judgments or final decrees of its trial courts. This is a power possessed by the Legislature, one which has been lawfully exercised, and, to the extent mentioned, it fixes and limits the scope of the jurisdiction of the appellate courts over such judgments and decrees. The determination of the time in which appeals may be taken is a legislative and not a judicial function. ¹⁴ The power of this Court under the Constitution ¹⁵ to adopt rules or procedure does not encompass the power to prescribe the time in which appeals may be prosecuted.

The district court opinion recites that the appeal is from a final judgment entered pursuant to a default. Following such statement, a skeletal chronology of the pleadings sets forth the date of the final judgment as June 20, 1957. The record filed in the cause shows that the notice of appeal was filed November 8, 1957, about four and one half months after the questioned final judgment. Such notice of appeal is directed not only to the final judgment of June 20th but to four orders entered prior to the final judgment and two orders entered thereafter. One order which followed the entry of the final judgment vacated an order setting aside the final judgment; the other reinstated the default and denied a motion to vacate the order reinstating the default.

The district court was without jurisdiction to entertain the appeal from the final judgment; therefore, it was without jurisdiction to decide any question which arose in the process of the litigation prior to the date of the final judgment. Such orders, as we have heretofore stated, are reviewable only on an appeal from the final judgment. The orders subsequent to final judgment, entered within the sixty day period of taking an appeal, can in no way furnish a basis for reviewing the final judgment which had theretofore passed into verity so far as appellate review is concerned. These latter orders under appropriate circumstances may be reviewed by certiorari but any error in or preceding the final judgment can only be cured by an appeal prosecuted within the time provided by law. ¹⁶

The respondent seems to lean heavily upon the cases decided by this Court prior to the effective date of the rules of civil procedure relating to the power of the courts to vacate and set aside defaults entered in common law actions. ¹⁷ Most of these cases were rendered inapplicable to that subject when the rules of civil procedure were adopted. For example, in many of the early decisions, it was held that the Court had complete control over its judgments and power to vacate, modify and set them aside during the term at which they were rendered. ¹⁸ Under the common law and the procedures existing at that time, terms of court had a very significant meaning. Such decisions, therefore, were clearly appropriate under the circumstances and modes of procedure and methods of operation of the courts then existing. When the civil rules of procedure were adopted, however, the inapplicability of these cases to present conditions was considered and met head on by Rule 1.6(c), Florida Rules of Civil Procedure, 30 F.S.A., ¹⁹ which to all intents and purposes eliminated the question of terms of court in matters of this kind and thereby rendered obsolete and inapplicable those decisions which turned upon that question. Moreover, it is pertinent to observe in this connection that the 1873 statute concerning the opening of defaults and which was carried forward in all of the statutory compilation and revisions to and including Florida Statutes 1953 (Section 50.10, F.S.1953) was repealed by Chapter 29,737, Lewis of Florida 1955F.S.A. and was not brought forward in any of the subsequent revisions. And so it is that under the statutes and rules existing at the present time, and which governed proceedings of this kind at the time of the occurrence of the various proceedings in the trial court and district court, there was no particular rule which related to the opening or setting aside of defaults entered pursuant to the provisions of the applicable statute or rules, notably Rule 2.9, Florida Rules of Civil Procedure, 31 F.S.A. A review, therefore, of the propriety of entering a default in any particular instance would be reviewable in the same manner and under the same circumstances as any other order of a trial court entered during the progress of the proceedings but prior to final judgment, that is to say, such order would be reviewable only on an appeal taken from the final judgment. It thus appears quite clear in this case that the question of whether an answer to a prior complaint could stand over to a subsequent amended complaint so thoroughly discussed by the district court could have been raised and determined in a timely appeal from the final judgment. Failure to do so closes the door on this question. The subsequent orders had nothing to do with this basic contention and could not, as we have heretofore stated, under any circumstances afford a basis for extending the time for prosecuting the appeal from the final judgment. To recognize the propriety of such a subsequent proceeding would be to effectively nullify the legislative determination that appeals must be taken within prescribed periods me from the rendition of final judgments and would vest in the trial judge the power to indefinitely extend such appeal period. All authority rejects such a proposition. ²⁰

The question of vacating orders or final judgments procured by fraud, deceit or other cause which would render it void is not involved in these proceedings. As between the parties any judgment or order procured from any court by the practice of fraud or deception may in appropriate proceedings be set aside at any time. A void judgment is a nullity, a brutum fulmen and is subject to collateral attack and may be stricken at any time. ²¹ The passage of time cannot make valid that which has always been void but it can and often does render valid that which was merely voidable or erroneously entered. ²²

The decision of the district court under review, deciding issues in an appeal taken more than sixty days after the final judgment from which the appeal was prosecuted, is in direct conflict with the decisions of this Court heretofore alluded to. Such decision must be and is hereby vacated and held for naught with directions to enter an order dismissing the appeal for lack of jurisdiction. ²³

1 Counne v. Saffan, Fla.1956, 87 So.2d 586; Donin v. Goss, Fla.1954, 69 So.2d 316 and State ex rel. Diamond...