Weisberg v. Perl
| Decision Date | 04 June 1954 |
| Citation | 73 So.2d 56 |
| Parties | WEISBERG v. PERL et ux. |
| Court | Florida Supreme Court |
Marx M. Faber, Miami, for appellant.
Wicker & Smith, Miami, for appellees.
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.
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 action has been tried by the court without a jury, the sufficiency of the evidence to support the judgment may be reviewed on appeal whether or not the party raising the question has...
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...Donin v. 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 l......
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Kapusta v. De Puy Mfg. Co.
...Counne v. Saffan (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), 27......
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Wagner v. Bieley, Wagner & Associates, Inc.
...judgments, 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); ......
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DeWitt v. Seaboard Coast Line R. Co.
...for rehearing should be directed only to final summary judgments which resolve all the issues between the parties. See Weisberg v. Perl, Fla.1954, 73 So.2d 56, and Kippy 'Quite obviously the majority receded from the decision in the Weisberg case because of the harsh and somewhat inconsiste......