Wartman's Estate, In re, 30800

• Decision Date: 22 March 1961
• Docket Number: No. 30800,30800
• Citation: 128 So.2d 600
• Parties: In re ESTATE of George H. WARTMAN, Jr. Virginia WARTMAN, Petitioner, v. Margaret Mason WARTMAN, as Executrix of the Estate of George H. Wartman, Jr., Respondent.
• Court: Florida Supreme Court

Page 600

128 So.2d 600

In re ESTATE of George H. WARTMAN, Jr. Virginia WARTMAN, Petitioner, v. Margaret Mason WARTMAN, as Executrix of the Estate of George H. Wartman, Jr., Respondent.

No. 30800.

Supreme Court of Florida.

March 22, 1961.

Rehearing Denied April 25, 1961.

Gotthardt, Christie & Shepard and Kenneth L. Ryskamp, Miami, for petitioner.

Robert M. Brake, Coral Gables, for respondent.

DREW, Justice.

This case comes before us by certification from the District Court of Appeal, Third District, and embraces a decision passing upon a question of great public interest because it involves 'an important new point of law relating to jurisdiction of the District Courts of Appeal.' The petition for writ of certiorari accompanying the certificate was considered in the opinion of In re Wartman's Estate before this Court at an earlier time. ¹

Respondent here, appellee below, Margaret Mason Wartman, as executrix of the estate of George H. Wartman, Jr., moved to dismiss an appeal filed December 18, 1959 in the District Court of Appeal, Third District, directed to an order of the County Judge's Court for Dade County dated November 12, 1959. The District Court of Appeal, Third District, entered its decision dismissing the appeal. ²

There is but one question with which we are faced, namely, whether the period of appeal as to final orders or decrees of the county judge's court in probate matters is 60 days or 30 days. In the instant case the appeal was filed on or about the 36th day and not within the period provided by Florida Statutes 732.16(2) (1959), F.S.A. This section is quite clear and reads:

'(2) Time for Appeal.--An appeal to the circuit court from an order or judgment of the county judge in a probate matter must be taken within thirty days from the date on which the order or judgment appealed was filed in the office of the county judge.'

To conclude our study at this plateau would lead to the obvious inference that the statute contained the answer to the problem in the instant case.

Section 732.16, Florida Statutes (1959), F.S.A. must be read in conjunction with SECTION 732.19, FLORIDA STATUTES³ (1959), F.S.A. as the former prescribed 30 days for appeal to the circuit court which then had intermediate appellate jurisdiction, and the latter prescribed 60 days for appeal to the Supreme Court which prior to the constitutional amendments of 1956 had final appellate jurisdiction in probate matters. Section 732.15, Florida Statutes (1959), F.S.A., allows these two appeals as a matter of right. ⁴ There was no constitutional ban to this procedural provision allowing for two appeals prior to the amendment of Article V of the Florida Constitution in 1956.

The former Article V, Section 5, lodged in this Court appellate jurisdiction 'of appeals from Circuit Courts in cases arising before Judges of the County Courts in matters pertaining to their probate jurisdiction and in the management of estates of infants.' Article V, Section 11, of the preamended Constitution provided that circuit courts shall have 'supervision and appellate jurisdiction of matters arising before County Judges pertaining to their probate jurisdiction, or to the estates and interests of minors'. Both of these sections of the Constitution were implemented by the statutory sections 732.15 through 732.20, Florida Statutes (1959), F.S.A.

The present provision, as amended, i. e. Article V, Sections 4(2) and 6(3) prescribes the jurisdiction of this Court and the circuit courts without granting to these courts appellate jurisdiction through appeal pertaining to probate matters or to estates and interests of minors and incompetents.

The two appeals under the former sections were first to the circuit court from an order, judgment or decree of a county judge, and secondly the appeal to this Court from an order or judgment of the circuit court rendered on an appeal to it from a county judge's court. Two independent appeals were contemplated and legally provided for. Under the amended Article V, Section 5(3) only a single appeal is authorized which is a direct appeal from an order or judgment of a county judge to a district court of appeal. ⁵

Not only has the organic provision been altered, but the implementation as well. Replacing the statutes, supra, under the amended Article are the Florida Appellate Rules governing practice and procedure ⁶ and Section 59.08, Florida Statutes (1959), F.S.A., ⁷ governing time. The rules were drawn in a manner to conform to the new constitutional provisions. Rule 4.4, F.A.R., 31 F.S.A., ⁸ providing for the procedure to be followed in appeals from the county judge's court to the district courts of appeal, was adopted to conform with the new provisions of Article V, Section 5. Rule 1.4, F.S.A., ⁹ which provides that all statutes not superseded by the Florida Appellate Rules shall remain in effect as rules promulgated by this Court, is necessarily limited to statutes relating to practice and procedure.

Rule 3.2(b), F.A.R., ¹⁰ must be read in the light of our decision in Ramagli Realty Co. v. Craver, Fla.1960, 121 So.2d 648, holding that the time within which appeals must be taken in purely a legislative matter and not subject to regulation by rules of this Court. Under this decision, the last three words in the rule, viz. 'or these rules' must be regarded as surplusage. This leaves the rule merely one tracking the statutes. A careful study of the rules will reveal that in those instances where the subject dealt with is one lying in the grey area between 'practice and procedure' and substantive law, the rule and statute have been preserved out of an abundance of caution and until such rules have been construed by this Court as falling within one or the other categories. ¹¹

Having considered the effect of the amended Article V on appeals such as arise in the instant case, it is patently clear that the constitutional authority for Section 732.15, Florida Statutes, F.S.A. has been withdrawn.

Respondent argues that either the 30 day provision in the unconstitutional Section 732.16 is retained inviolate or that this Court revived this portion of the statute by incorporating it by reference into the Florida Appellate Rules. Answering the second contention first, if this Court had the authority to fix an appeal period, which it does not have, this Court has no constitutional authority to revive a portion of an unconstitutional statute and subsequently incorporate it by reference or any other way in the Florida Appellate Rules. As to the first argument which allows the 30 day provision to remain alive when all the remainder of the statute has lost its constitutional validity is to do serious damage to our previous decisions on statutory interpretation, ¹² as well as the plain intendments of Article V.

Codomo v. Shaw, Fla.1958, 99 So.2d 849, 851, relied upon by the court below, is, in fact, not authority for this instant decision. In the Codomo case, Section 475.35, Florida Statutes of the Real Estate License Law, F.S.A. was under consideration. It provided for an appeal to the circuit court and also provided for procedure therefor including a 30 day time for filing notice of appeal. New Article V, Section 6 had eliminated legislative authority for such an appeal. In holding that this statute 'must fall' and was 'repealed', we held:

'* * * We note that former Article V, Section 11, of the constitution provided for final appellate jurisdiction in the circuit courts as to certain specified matters 'and of such other matters as the Legislature may provide.' Thus the authority upon which F.S. § 475.35, F.S.A., rested was clear. The quoted language, however, was eliminated from new Article V, Section 6 (the present connterpart of former Section 11) in connection with final appellate jurisdiction, although this language was retained in connection with original jurisdiction. This elimination of the enabling language, to our mind, demonstrates an intention on the part of the framers to remove the support for F.S. § 475.35, F.S.A., and the statute, accordingly, must fall.' at page 851.

Fragmentary invalidation of Section 732.16 to Section 732.20 which contain no severability or savings clause so as to uphold the portion of the statute containing the 30 day provision is an unaceptable legal method of striking objectionable provisions absent legislative intent in that direction. ¹³ The double appeal previously allowed as a matter of right in probate proceedings was abolished by constitutional amendment and, therefore, all statutory sections referring to this appellate avenue are also superseded in their entirety.

In view of the foregoing, we conclude and hold that Section 732.15 to Section 732.20, inclusive, were rendered ineffective and inoperative as of the effective date of amended Article V of the Florida Constitution and are no longer in force and effect. We hold that all appeals from final orders or decrees of county judges' courts pertaining to probate matters or to estates and interests of minors and incompetents to the district courts of appeal, insofar as practice and procedure are concerned, are governed by Florida Appellate Rules and that the time within which such appeals may be taken are governed by Section 59.08, Florida Statutes, F.S.A.

The decision of the District Court of Appeal, Third District, herein is quashed and the cause...