Weisberg v. Perl
| Court | United States State Supreme Court of Florida |
| Writing for the Court | MATHEWS; ROBERTS |
| Citation | 73 So.2d 56 |
| Decision Date | 04 June 1954 |
| Parties | WEISBERG v. PERL et ux. |
Page 56
v.
PERL et ux.
Rehearing Denied June 18, 1954.
Page 57
Marx M. Faber, Miami, for appellant.
Wicker & Smith, Miami, for appellees.
MATHEWS, Justice.
On October 9, 1953, the Circuit Court of Dade County entered a summary final judgment pursuant to motion and notice. In this final judgment the Court found that 'there is no genuine issue of a material fact to be submitted to a jury and that the defendants are entitled to a judgment as a matter of law.' The same order contained the following:
'It is, therefore,
'Ordered and Adjudged that final judgment be and the same is hereby entered in favor of the defendants, * * * and against the plaintiff * * * and that the defendants go hence without day.'
On October 15, 1953, the appellant filed motion entitled 'Petition for Re-Hearing and for New Trial.' This motion was denied on January 27, 1954. Notice of appeal to this Court was filed on March 23, 1954, which was more than sixty days from the entry of the final judgment and within sixty days from the entry of the order denying petition for rehearing and for new trial.
The appellees filed motion to dismiss the appeal on the ground that the petition for rehearing and for a new trial, filed October 15, 1953, did not toll or stay the time for prosecuting an appeal from the summary final judgment entered on October 9, 1953, and that such notice should have been given within sixty days from the time of the entry of the summary final judgment.
This is a common law action and a petition for a rehearing after summary final judgment is unknown and unheard of in such a proceeding.
Page 58
A motion for a new trial is provided for by 30 F.S.A. Common Law Rules, rule 41. The appellant relies upon this rule. The rule contemplates that there should have been a trial and a verdict of a jury or a finding upon the disputed questions of fact. The rule provides that such motion shall not preclude the entry of judgment on the verdict and that the motion shall be made within four days after the rendition of the verdict. This rule was amended by order dated March 18, 1952, effective June 1, 1952, and changed the time for filing the motion for a new trial to ten days 'after the rendition of the verdict'. The rule, as amended, contemplates that the motion for new trial should be made after a rendition of a verdict by the jury except sub-paragraph (e) which provides that 'Where an...
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Kapusta v. De Puy Mfg. Co., No. 20619
...(1956), Fla., 87 So.2d 586; Healy v. Metropolitan Utilities Dist. (1954), 158 Neb. 151, 62 N.W.2d 543; Weisberg v. Perl (1954), Fla., 73 So.2d 56 (Weisberg case overruled on issue not relevant here in Floyd v. State (1962), Fla., 139 So.2d 873); Collins v. Toombs (1946), 271 App.Div. 160, 6......
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Ramagli Realty Co. v. Craver
...Goss, supra; Counne v. Saffan, supra; State ex rel. Diamond Nerk Insurance Agency, Inc. v. Carroll, supra. In Weisberg v. Perl, Fla.1954, 73 So.2d 56, 57, a 'petition for rehearing and for new trial' was filed six days after the rendition of a summary judgment entered in a common law action......
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American States Insurance Co v. State ex rel Jennings, No. 170A2
...summary judgment proceeding is not a trial. Collins v. Toombs (1946), 271 App.Div. 160, 63 N.Y.S.2d 545; Weisberg v. Perl (1954), Fla., 73 So.2d 56; Otteman v. Interstate Fire and Casualty Company (1960), 171 Neb. 148, 105 N.W.2d 583; Parmelee v. Chicago Eye Shield Co. (1946), 8 Cir., 157 F......
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Wagner v. Bieley, Wagner & Associates, Inc., No. 41546
...the pendency of such petitions could not and did not operate to toll the time for filing notice of appeal. See Weisberg V. Perl, 73 So.2d 56 (Fla.1954); Counne v. Saffan, 87 So.2d 586 (Fla.1956); La Joie v. General Motors Acceptance Corporation, 108 So.2d 497 (Fla.App.2d, 1959); Albert v. C......
-
Kapusta v. De Puy Mfg. Co., No. 20619
...(1956), Fla., 87 So.2d 586; Healy v. Metropolitan Utilities Dist. (1954), 158 Neb. 151, 62 N.W.2d 543; Weisberg v. Perl (1954), Fla., 73 So.2d 56 (Weisberg case overruled on issue not relevant here in Floyd v. State (1962), Fla., 139 So.2d 873); Collins v. Toombs (1946), 271 App.Div. 160, 6......
-
Ramagli Realty Co. v. Craver
...Goss, supra; Counne v. Saffan, supra; State ex rel. Diamond Nerk Insurance Agency, Inc. v. Carroll, supra. In Weisberg v. Perl, Fla.1954, 73 So.2d 56, 57, a 'petition for rehearing and for new trial' was filed six days after the rendition of a summary judgment entered in a common law action......
-
American States Insurance Co v. State ex rel Jennings, No. 170A2
...summary judgment proceeding is not a trial. Collins v. Toombs (1946), 271 App.Div. 160, 63 N.Y.S.2d 545; Weisberg v. Perl (1954), Fla., 73 So.2d 56; Otteman v. Interstate Fire and Casualty Company (1960), 171 Neb. 148, 105 N.W.2d 583; Parmelee v. Chicago Eye Shield Co. (1946), 8 Cir., 157 F......
-
Wagner v. Bieley, Wagner & Associates, Inc., No. 41546
...the pendency of such petitions could not and did not operate to toll the time for filing notice of appeal. See Weisberg V. Perl, 73 So.2d 56 (Fla.1954); Counne v. Saffan, 87 So.2d 586 (Fla.1956); La Joie v. General Motors Acceptance Corporation, 108 So.2d 497 (Fla.App.2d, 1959); Albert v. C......