Redwing Carriers, Inc. v. Carter
| Decision Date | 14 April 1953 |
| Citation | 64 So.2d 557 |
| Court | Florida Supreme Court |
| Parties | REDWING CARRIERS, Inc. v. CARTER et al. |
Lewis Hill, Jr., of Hill, Hill & Dickenson, Tampa, and Harry E. King, of King & Staufer, Winter Haven, for petitioner.
Wallace E. Sturgis, Ocala, for W. C. Denny and others.
Martin Sack, Jacksonville, for Petroleum Carrier Corp.
Caldwell, Parker, Foster & Wigginton, Tallahassee, for Motor Fuel Carriers, Inc.
Lewis W. Petteway and R. Y. Patterson, Jr., Tallahassee, for respondents.
This cause is before the Court on a motion to dismiss the petition for certiorari upon grounds hereafter noted in this opinion.
As we understand the record in the cause, Redwing Carriers, Inc., the petitioner in this proceeding, applied to the Florida Railroad and Public Utilities Commission for rehearing. F.S.A. §§ 350.12(l, m), of public convenience and necessity to operate as a common motor carrier. On July 22, 1952, the motion was denied upon the ground that the applicant had failed to prove public convenience and necessity. Thirteen days after the entry of the order of denial, the applicant filed a petition for rehearing in accordance with Rule 15 of the Commission, but did not seek or procure an order from the Commission staying the operation of the order of denial. The Commission granted the petition for rehearing and on October 9, 1952, a rehearing was had. Thereafter, on December 15, 1952, the Commission entered an order affirming its previous order of denial entered on July 22, 1952.
Within 60 days from the date of the order entered by the Commission on rehearing granted, but more than 60 days after the entry of the original order of denial, Redwing Carriers, Inc., filed its petition for certiorari in this Court to review the orders entered in the cause.
The respondents have moved to dismiss the proceeding on the ground that in the absence of a stay order the petition for rehearing did not have the effect of staying the operation of the order entered by the Commission on July 22, 1952, and hence that this Court is without jurisdiction to entertain the certiorari proceeding instituted more than 60 days after the entry of said order.
To support their position respondents cite Judson Lumber Company v. Patterson, 68 Fla. 100, 66 So. 727; Gasque v. Ball, 71 Fla. 257, 71 So. 329; In re Warner's Estate, 160 Fla. 103, 33 So.2d 728, and Ludman Corporation v. Moyer, Fla., 61 So.2d 424, which hold, in effect, that under the chancery practice of this state a petition for certiorari which has been filed more than 60 days after the entry of the chancery order sought to be reviewed cannot be entertained by this Court, in the absence of an order staying proceedings pending the disposition of a petition for rehearing.
In opposition to the motion the petitioner relies on O'Steen v. Thomas, 146 Fla. 73, 200 So. 230; Hollywood, Inc. v. Clark, 153 Fla. 501, 15 So.2d 175; and Dade County v. Snyder, 134 Fla. 756, 184 So. 489, which recognize the rule stated in the foregoing cases and then state the exception thereto, that the filing and presentation of a petition for rehearing in a case where the final decree grants no affirmative relief 'suspends' the operative effect of the final decree for appeal purposes until the court acts on the petition.
If we were dealing here with an equity cause the cases cited by counsel would be controlling. However, the orders which the petitioner seeks to have reviewed are not in equity but are orders entered by the Florida Railroad and Public Utilities Commission in an administrative proceeding held pursuant to the rules and regulations of that tribunal. Hence the issue in the cause is not so much whether the petition for certiorari was timely filed according to equity rules of procedure, but whether in accordance with the rules and regulations promulgated by the Commission it was necessary for a stay order to be entered in that tribunal in order to toll the operative effect of the 60-day period prescribed by section 350.641(1), Florida Statutes 1951, F.S.A., for seeking review of a Commission order.
Rule 15 of the Commission, governing procedure in respect to matters before the commission, provides, in part, that Neither this rule, nor any other rule of the Commission, prescribes the effect that the filing of a petition for rehearing shall have upon its orders entered on the merits or requires that a stay order shall be obtained to stay the operative effect of such orders.
The prevailing law is that where a statute provides in...
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...to be tenable, as applied to such a case as this, because of our holdings in Kent v. Marvin, Fla., 59 So.2d 791, and Redwing Carriers, Inc., v. Carter, Fla., 64 So.2d 557, that if a motion for new trial is made in a common law or criminal action within the time provided by law, the running ......
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Ganzer v. Ganzer
...to toll the time for appeal under a rule which is 'the same as that applicable in common law * * * actions.' Redwing Carrier, Inc., v. Carter, Fla.1953, 64 So.2d 557, 559. We have reviewed and reconsidered what was said with reference to the exception where a stay order is required. It appe......
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Kendall v. City of Fort Pierce
...for rehearings, either by rule or by statute. The Civil Service Appeals Board in the instant case is not. In Redwing Carriers, Inc. v. Carter, Fla.1953, 64 So.2d 557, the Supreme Court in discussing a petition for rehearing before the Railroad and Public Utilities Commission had this to say......
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...a petition for rehearing to be filed within 15 days after the filing with the secretary of the order of the Commission.9 Redwing Carriers v. Carter, Fla., 64 So.2d 557. Cf. Ganzer v. Ganzer, Fla., 84 So.2d 591, as to requirement that motion must be timely ...