State Ex Rel. Davis v. City of Avon Park

• Decision Date: 22 December 1933
• Citation: 117 Fla. 556,151 So. 701
• Parties: STATE ex rel. DAVIS, Atty. Gen., et al. v. CITY OF AVON PARK.
• Court: Florida Supreme Court

151 So. 701

117 Fla. 556

STATE ex rel. DAVIS, Atty. Gen., et al. v. CITY OF AVON PARK.

Florida Supreme Court, Division B.

December 22, 1933

On extraordinary petition for rehearing.

Petition denied.

For former opinion, see 149 So. 409.

COUNSEL

Walker & Willson, of Bartow, Giles & Gurney, of Orlando, and Mabry Reaves & White, of Tampa, for relators.

S. C Pardee, of Avon Park, for respondent.

OPINION

BROWN Justice.

In this case a judgment was rendered by this court on June 2, 1933, being during the January term, 1933, 149 So. 409, dismissing the cause without prejudice to the parties to institute like proceedings in the circuit court for the purpose of determining and having adjudicated the questions involved. The reasons for this judgment were set forth in the opinion rendered on that day. Within the fifteen days allowed by the rules of this court, the relators filed a petition for rehearing; said petition being filed on June 16, 1933, during the June term of the court, which term began on Tuesday June 13th. See section 4690, Comp. Gen. Laws. This petition for rehearing was denied. Several months later, but during the same term, on November 6, 1933, the relators filed an extraordinary petition for reinstatement of the cause and for a rehearing. The question arises whether this court has jurisdiction to entertain such a petition, or to grant the prayer thereof.

The term at which the final judgment of the court was rendered having expired on June 12, 1933, the court only retained jurisdiction to entertain and act upon a petition for rehearing which had to be filed within fifteen days from the date of the final judgment which was rendered on June 2, 1933. If this petition for rehearing which was filed on June 16, 1933, had been granted, this action of the court would have resulted, in effect, in a reinstatement of the cause on the docket during the June term, being the present term of the court, for such disposition of the cause as the court might deem fit; but the petition for rehearing was denied, and the question arises whether, upon such denial, the cause was terminated and the court's jurisdiction of the cause ended, so that it could not take any further action in the cause which had for its object any modification of or change in the judgment which it had rendered during the preceding January term.

And if the court did lose jurisdiction when it denied the petition, the further question arises: Can the court now re-acquire jurisdiction of the cause, which is an original proceeding in quo warranto instituted in this court, by now setting aside or vacating its order made during the present June term, denying the petition for rehearing?

In the absence of statute, the general rule is that the power of an appellate court over its orders and judgments, like that of courts generally, continues to the end of the term at which the judgment is rendered, and then absolutely terminates. This general rule 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 time required by the statute, and as to cases in the Supreme Court, by the rule permitting the filing of petitions for rehearing within fifteen days.

In Washington v. State, 92 Fla. 740, 110 So. 259, it was held that this court, in an appellate case, was without power to recall a mandate regularly issued, and sent down to the lower court without inadvertance, and resume jurisdiction of the cause, after the expiration of the term at which its judgment was rendered and the mandate issued, except for the purpose of correcting clerical errors or mistakes or setting aside a judgment shown for some adequate reason to be absolutely void.

In 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, it was held that, during the same term at which a judgment of this court is rendered, the court has jurisdiction and power to reconsider, revise, reform, and modify its judgment for the purpose of making the same accord with law and justice, and for that purpose it has the power to recall its mandate to enable it to exercise such jurisdiction to reconsider its own judgment in a proper case; that this court does not lose jurisdiction over its own judgment before the expiration of the term at which it was rendered even though a mandate based thereon has been issued and lodged in the court whose judgment was appealed from; that it might recall its mandate and resume jurisdiction over its own judgment during the term at which it was rendered.

In the case of State ex rel. Davis, Attorney General, v. City of Clearwater, 106 Fla. 761, 139 So. 377, 146 So. 836, this court held that it could vacate its judgment, rendered on rehearing, after the term at which it was entered, where a mandate had not been transmitted to the lower court. That case involved a case brought to this court by writ of error. In this case, being a case of original jurisdiction, the matter of sending down a mandate is, of course, immaterial, and has no application. In the case just cited, the judgment of the lower court was affirmed by this court on June 17, 1931, motion for rehearing was filed, and on January 7, 1932, during the same term at which the judgment of affirmance was rendered, the original judgment of this court was reaffirmed. For some reason or inadvertance, the mandate was not sent down. At the subsequent term, on February 17, 1932, this court ex mero motu entered an order granting a further rehearing. It was contended by appellee that this court was without jurisdiction to further consider the case, other than order the mandate transmitted to the lower court; but this court held that it retained full jurisdiction until the mandate to the lower court was transmitted, although the term at which the judgment was rendered had expired. So in that case we held that the jurisdiction of the court over its judgment was continued into the succeeding term because the mandate had not been transmitted to the lower court. If the rule permitting petitions for rehearing within fifteen days has the same effect on this court's jurisdiction as does the withholding of the mandate to the lower court in an appellate case, then it follows that, applying the same reasoning to this case, the power of the court over its judgment rendered in this case during the January term, 1933, was continued into this, the June term, by reason of the filing of the petition for rehearing within fifteen days, although the petition for rehearing was filed during the succeeding June term, and as the action of this court in denying the petition for rehearing in this case was taken during this, the June term, 1933, it would therefore follow that if this court should now set aside and vacate its order denying the petition for rehearing rendered during this term, its full jurisdiction over the cause would be continued to the full extent that it would have been if such order had never been made, and it could therefore, after setting aside its order denying the rehearing, then grant a full rehearing of the case at bar, and change its judgment rendered during the preceding term.

But it may be fairly contended that there is a difference in its effect upon the jurisdiction of this court between a case where the mandate has been withheld, in appellate proceedings, and a case--of either appellate or original jurisdiction--where a petition for rehearing has been filed within fifteen days from the time the judgment of this court was rendered. In the above-cited case of State ex rel. Davis v. City of Clearwater, in the opinion written for the court by Circuit Judge...