State ex rel. Owens v. Pearson

Citation156 So.2d 4
Decision Date29 May 1963
Docket NumberNo. 31850,31850
PartiesSTATE of Florida ex rel. Eugene W. OWENS, Relator, v. Honorable Tillman PEARSON, as Chief Judge, Honorable Charles A. Carroll, Honorable Mallory H. Horton, Honorable Thomas as H. Barkdull, Jr., and Honorable Norman Hendry, as Judges of the District Court of Appeal, Third District, State of Florida, Respondents.
CourtUnited States State Supreme Court of Florida

Parker, Foster & Madigan, Julius F. Parker, Tallahassee, and Ely R. Katz, Miami Beach, for relator.

Sibley, Grusmark, Giblin, King & Levenson and James Lawrence King, Miami Beach, for respondents.

DREW, Justice.

These are significant events and the dates of their occurrence that provide the factual background of these original prohibition proceedings in this Court:

                                    Document                       Effective Dates
                ------------------------------------------------  ------------------
                Final Decree                                      September 25, 1961
                Notice of Appeal to District Court of Appeal by
                 defendant against whom decree was entered        September 29,1961
                Petition for rehearing and application for leave
                 to amend                                         October 3, 1961
                Order granting petition for rehearing etc. and
                 modifying final decree                           October 20, 1961
                

January 8, 1962, appellee [plaintiff in the trial court] moved the district court to dismiss the appeal because it had been taken from a final decree which had not been 'rendered' and was therefore not a final decree for the purposes of appeal. 1 The motion was denied without comment, whereupon these proceedings were commenced here to prohibit the district court from proceeding further in the cause.

The initial contention of respondent is that under the constitutional language 2 we may issue writs of prohibition to a district court only in those instances when questions are involved upon which a direct appeal to the Supreme Court is allowed as a matter of right. 3 We have taken original jurisdiction in prohibition in at least one case 4 where an almost identical question was involved. The original appearance of the Diamond Berk case in this Court 5 was a certiorari proceeding questioning the power of the district court to entertain an appeal taken from a trial court where the notice of appeal was filed in the district court of appeal instead of the trial court. We denied certiorari in that case because of the failure to demonstrate any conflict of decisions but did so without prejudice to apply to this Court for prohibition. Following the decision in that case application for prohibition was made here, the rule nisi was issued, and the matter was fully heard resulting in the opinion heretofore cited. 6 In that case, while we did not discuss this question directly, we did observe that the Constitution emplowered this Court to issue writs of prohibition to the district courts of appeal and we set forth no limitation on that power.

The qualifying words in the constitutional language, 7 viz: 'when questions are involved upon which a direct appeal to the supreme court is allowed as a matter of right,' relate only to the trial courts. This result is required by the clear intent of the Constitution when all of Section 4 is read together, and is also dictated by the established rules of grammatical construction that, following an enumeration in series, a qualifying phrase will be read as limited to the last of the series when it follows that item without a comma or other indication that it relates as well to those items preceding the conjunction. In State ex rel. Peterson v. Weissing 8 we discussed this language so far as it related to trial courts, holding that this qualification related to the trial courts and that this Court was without jurisdiction to prohibit proceedings in the trial court in those cases where a direct appeal was not allowed to this Court as a matter of right. We now hold that the qualifying words do not relate to decisions of the district court of appeal and that the contention of the respondent in this connection cannot be sustained.

The second point involved here is whether a petition for rehearing authorized by the rules of procedure, 9 and properly and timely made as contemplated by F.A.R. 1.3, destroys the finality for purposes of appeal of a decree theretofore entered and therefore destroys the effectiveness of a notice of appeal theretofore filed. We must answer this question in the affirmative. F.A.R. 1.3 10 clearly and specifically provides that such decree shall not be deemed to have been rendered until such motion is disposed of. In Ganzer v. Ganzer 11 this Court specifically said '[u]ntil a timely petition for rehearing has been ruled upon, the decree does not become final for purposes of appeal. The judicial labor has not been completed. * * *' The pronouncement in Ganzer was a reiteration of the long-standing rule of this Court pronounced in many decisions that the test of finality of judgments and decrees is to be determined by whether the judicial labor has been completed. This Court has never departed from the principle that where a petition for rehearing has been properly made within the time fixed by appropriate statute or rule, the tiral court has complete control of its decree with the power to alter or change it until said motion has been disposed of. It therefore follows that the judicial labor has not been terminated and could not be terminated until the trial court had disposed of such petition. Until that time the decree or judgment was not final and the time for taking the appeal 12 did not commence to run until the date of the entry of such order. 13

Any other rule would result in complete confusion in the disposition of litigation. If an appeal taken within the critical period vested jurisdiction in the appellate court to the complete exclusion of the trial court, it would in the first place nullify the provisions of the rules and statutes authorizing an affected party to file a petition for rehearing, and at the same time would effectively prevent the trial court from correcting mistakes, errors or altering or modifying its decrees. Such a rule could result in many instances of needless appellate litigation. Jurisdiction under such circumstances, after the filing of a timely petition, must be exclusively in one court or another. It cannot be in both courts at the same time. To give effect to the rule and statutes the conclusion is inevitable that a final decree is simply not appealable if a motion for new trial is made properly and timely, until such time as the motion is disposed of by the trial court. This is not to say that an appeal may not be taken promptly upon the rendition of a final decree. We have held that in the event a petition for rehearing is filed then the subsequent filing of a notice of appeal amounted to an abandonment of such petition, thereby vesting in the appellate court jurisdiction of the cause. 14 Obviously where no petition for rehearing is filed within the allowable period, nothing has transpired by which...

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  • Kasischke v. State
    • United States
    • United States State Supreme Court of Florida
    • 10 Julio 2008
    ...deviant behavior pattern" would modify only "electronic media, computer programs, or computer services." See State ex rel. Owens v. Pearson, 156 So.2d 4, 6 (Fla.1963) ("[F]ollowing an enumeration in a series, a qualifying phrase will be read as limited to the last of the series when it foll......
  • Coeur D'Alene Turf Club, Inc. v. Cogswell
    • United States
    • United States State Supreme Court of Idaho
    • 22 Julio 1969
    ...1963). This discontinuity is achieved by deeming the appellant in the first instance to have 'waived' his motions, State ex rel. Owens v. Pearson, Fla. 156 So.2d 4 (1963). Nor are the parties in this case in a posture which would appeal to our sense of equity or which would lend itself to t......
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    • Court of Appeal of Florida (US)
    • 24 Noviembre 1987
    ...effect an abandonment of the previously filed motion, and jurisdiction is vested immediately in the appellate court. State ex rel. Owens v. Pearson, 156 So.2d 4 (Fla.1963). Nevertheless, HRS concedes that there is no provision by statute or rule for an agency to retain jurisdiction over its......
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    ...on petition for rehearing was filed on December 9, 1974. See Kippy Corp. v. Colburn, 177 So.2d 193, 195 (Fla.1965); State ex rel. Owens v. Pearson,156 So.2d 4, 7 (Fla.1963). To the argument, based on Gulesian and Conboy, supra, that the Interlachen Lake Estates decision was limited to the f......
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