Tom v. State ex rel. Tom

• Decision Date: 06 July 1962
• Docket Number: No. 2963,2963
• Citation: 143 So.2d 226
• Parties: Helen TOM, a/k/a Siu Fun Kwong Tom, Appellant, v. STATE of Florida ex rel. Johnny TOM, a/k/a Jin Hon Tom, Appellee.
• Court: Florida District Court of Appeals

Page 226

143 So.2d 226

Helen TOM, a/k/a Siu Fun Kwong Tom, Appellant, v. STATE of Florida ex rel. Johnny TOM, a/k/a Jin Hon Tom, Appellee.

No. 2963.

District Court of Appeal of Florida, Second District.

July 6, 1962.

Rehearing Denied July 27, 1962.

James F. Snelling, St. Petersburg, for appellant.

C. Ray Smith, St. Petersburg, for appellee.

SHANNON, Chief Judge.

This is an appeal from an order entered in favor of the respondent-appellee in a habeas corpus proceeding.

Upon examining the record-on-appeal in the instant case, a question of this court's jurisdiction became apparent--a question which was raised by neither party herein. Questions of jurisdiction, however, may be noticed by the appellate court ex mero motu. In re Estate of O'Neal, Fla.App.1962, 142 So.2d 315; Casey v. Smith, Fla.App.1961, 134 So.2d 846; Florio v. State ex rel. Epperson, Fla.App.1960, 119 So.2d 305, 80 A.L.R.2d 1117.

The notice of appeal filed in the instant case is directed to an order or judgment of the circuit court which, according to the certificate of the clerk of that court, was filed for record on January 2, 1962, although the judge signed it on December 12, 1961. The notice of appeal bears the certificate of the clerk of the lower court indicating that it was filed and recorded in his office on December 11, 1961.

Then, on December 14, 1961, counsel for the parties filed with the clerk below the following stipulation:

'Comes now the Defendant, HELEN TOM, by and through her undersigned attorney, joined by C. Ray Smith, Attorney for JOHNNY TOM, and hereby stipulate and agree that the Judgment Appeal from the above styled cause was the final Order of this Court entered on December 12, 1961, in the above styled cause. That Defendant inadvertently filed the Notice of Appeal prematurely in that the Lower Court had indicated the terms of its judgment and that the Plaintiff's attorney had, on the 11th day of December, 1961, supplied the Defendant's attorney with a copy of the same; however, the Final Judgment was actually entered in the Lower Court on December 12, 1961.'

Rule 3.1 subd. b, Fla.App.Rules, 31, F.S.A., reads as follows:

'Appeals from final decisions, orders, judgments or decrees shall be commenced within 60 days from the rendition of the final decision, order, judgment or decree appealed from, unless some other period of time for taking an appeal is specifically provided by statute or these rules.'

The vital word 'rendition' is defined in Rule 1.3, Fla.App.Rules,...