53 Fla. 515 | Fla. | 1907
Lead Opinion
(after stating the faots) : It is contended by counsel for defendant in error that, in accordance with the provisions of Section 1180 of the Revised Statutes of 1892, which is Section 1608 of the General Statutes of 1906', motions for new trials are required to- be made in term time, and within four days after the verdict shall have been rendered; and that Chapter 5403, Laws of 1905, providing for an extension of the time for the making and presentation of such motions beyond that time never became a law, because Section 4 thereof provides that it. “shall take effect immediately upon its passage and approval,” and that it never was approved by the governor.
Chapter 5403, Acts of 1905, is as follows: ’
“AN ACT Relating to Motions for New Trials in Civil’ Cases.
'Be it Exacted by the Legislature of the State of Florida:
Section 1. Motions for new trials in civil cases shall be made'within four days after the-rendition of the verdict,
It shall not be necessary to incorporate in any motion for a new trial any matter in pais previously excepted to, for the' purpose of having the same reviewed by an apellate court.
Sec. 2. The judge shall have the power to hear and determine any motion for new trial in vacation, and any such adjudication thereof in vacation shall be entered in the minutes of the court and .shall have the like force and effect as if made during term time.
Sec. 3. The provisions of this act shall not apply to criminal causes.
Sec. á. All laws or parts of laws in conflict with the provisions of this act are hereby repealed, and this act shall take effect immediately upon its passage and approval.
Became a law without the approval of the governor.”
I am of opinion that this chapter became a law under the provisions of Section 28 of Article III of the Constitution of 1885 as follows: “If any bill shall not be returned within five days after it shall have been presented to the governor (Sunday excepted) the same shall be a law, in like manner as if he had signed it.” There is no division of the court upon this question.
Article 5, Section 1, Constitution of 1885, provides: “The judicial power of the state shall be vested in a supreme court, circuit courts” and other courts named therein.
Section 8 .of the same article, as amended in 1901, provides : “There shall be eight circuit judges, who shall be appointed by the governor,” &c. “The state shall be divided by the legislature • * * * into eight judicial circuits, and one judge shall be assigned to each circuit. Such judge shall hold at least two terms of Ms court in each county within his circuit every year.” &c.
“This section shall not be operative until the legislature shall have divided this State into eight circuits, as hereinbefore provided for, and the seven circuit judges holding office at the time of such division shall continue to exercise jurisdiction over their several existing circuits, as constituted at the time of such division, until the judge of the additional circuit shall have qualified. The circuit judges holding, office at the time of such division shall severally continue in office until the expiration of their then existing term of office as judges of the circuits, respectively, in which * * * the county of his residence may be included, and a judge for the additional circuit shall be appointed for a term equal to the unes
Section 8, Article 5, of the constitution provides: “The governor may, in his discretion, order a temporary exchange of circuits by the respective judges, or order any judge to hold one or more terms, or parts of any term, in any other circuit than that to which he is assigned. The judge shall reside in the circuit of which he is judge.”
Section 19, Article Y, of the constitution provides : “When any civil cáse at law in which the judge is disqualified shall be called for trial in any circuit or county conrt the parties may agree upon an attorney at law, who shall be judge ad) litem, and shall preside over the trial of and make orders in said cause as if he were judge of the could. The parties may, however, transfer the cause to another circuit or county court, as the case may be, or may have the case submitted to a referee.”
Section 11, Article Y, of the constitution is as follows: “The circuit courts and circuit judges may have such extra territorial jurisdiction in chancery cases as may be prescribed bylaw.”
From the foregoing provisions, I am of the opinion that a circuit judge is appointed to be judge of a certain circuit, definitely designated by number, in which he resides. and the counties included therein are designated and named by statute, and the constitution limits his judical power to the territory of his circuit; except in those exceptional instances or cases provided for in the constitution, or by statutes which are not in conflict with the constitution. One of the exceptions to this constitutional territorial limit of the judge’s' judicial power, a grant of extra territorial jurisdiction, is the provision of the constitution authorizing the governor to order a
It is equally true, in my opinon, that at the expiration of the two weeks when he was ordered by the governor to hold court in Alachua county Judge Palrper ceased to have power to act as judge of the eighth judicial circuit, and Judge Wills, and only Judge Wills, possessed the judicial power as judge of the eighth circuit. It is clear, in my opinion, that if the validity of Judge Palmer’s action upon the motion for a new trial in this case rests upon his power to act as judge of the eighth circuit under the order of the governor, the action of Judge Palmer in that matter was without authority, and that the order denying the motion for new trial and extending the time for presenting the bill of exceptions, and his signature of same, were all null and void, and the motion to strike the bill of exceptions should be granted.
Another constitutional grant of extra territorial juris
Section 1077 of the Revised Statutes of 1892 is as follows : “Whenever any civil cause may be pending in any of the courts of this State, and it cannot be heard, tried or determined by reason of the disqualification, of the judge of such court, the parties, if it be at common law in the circuit court or county court, and either party in all other cases, may present a petition to such judge praying that said cause be transferred to some other circuit court, county court, county judge’s court, or justice of the peace, as the case may be, and it shall be the duty of the judge so disqualified to make an order removing said cause to some court in the next nearest circuit, if the same be in the circuit court, or county in a county court or county judge’s court, or district if in a justice court; but if the judge in the nearest circuit, county or district be also disqualified, some other circuit, county or district shall be selected for that purpose.” This court in construing this section has held that a transfer in accordance therewith can only be had upon request of both parties, plaintiff and defendant (State ex rel. Hughes v. Walker, 25 Fla. 561, 6 South. Rep. 169); that this statute must- be strictly observed, and everything necessary to transfer jurisdiction under the statute must appear in the record of the cause (Swepson v. Call, 13 Fla. 337); the order of transfer must direct the transfer of the cause and name the county to which the cause is transferred (Bauknight v. Sloan, 17 Fla. 281);
If the validity of the action of Judge Palmer in ruling upon the motion for new trial, and in making an order extending the time for presenting a bill of exceptions, and in signing the same, depends upon Article 5, Section 19, of the constitution, and upon Section 1077 of the Revised Statutes of 1892, then, in my opinion, said action of Judge Palmer is null and void, and the motion herein being considered should be granted; for these provisions of the constitution and statutes were not complied with, and this cause was not legally transferred to. the third judicial circuit, of which Judge Palmer was the judge. But the validity of the action of Judge Palmer does not depend upon the provisions of Article V, Section 19, of the constitution and upon Section 1077, Revised Statutes of 1892. This cause was not trmisferrecl to Judge Palmer; and in raling and acting upon this motion for new trial, and in making the orders, in connection therewith, he exercised no extra-territorial jurisdiction, as I will proceed to show. The action of Judge Palmer in ruling upon the motion for new trial, and making the orders herein, was authorized by the provisions of Section 1078 of the Revised Statutes of 1892, which is as follows: “1078. Substitution of Other. — Whenever the judge of any court, other than the supreme and criminal courts of record, shall be unable, from absence, sickness or other cause, or shall be disqualified, from interest or any other cause, to discharge any duty whatever appertaining to his office, which may be required to be performed in vacation or between terms, it shall be the duty of any other judge of a court of the same jurisdiction as the court in which the cause is pending, on the application
It will first be well to note that this motion for new trial may be presented to Judge Palmer, under section 1078, by the defendant, without the concurrence therein of the other party — consideration of this motion by Judge Palmer does not depend upon the request of both parties, as would be the case under Section 1077, Revised Statutes of 1892. Section 1078 provides that “it shall be the duty of any other judge * ' * * on application of any party, to perform such 'duties,” &c. It will be profitable to note, also, that this, section 1078 does not require the making of an order by Judge Wills for The presentation of the motion .for new trial to Judge Palmer, as is required in the cas,e of a transfer of a cause under section 1077. Then let us see whether it appears in the record that Judge Wills was unable to act on this motion for
The next contention made by the movant herein is that the bill of exceptions was signed in vacation, without an order made within the term of the court granting time for and authorizing the signing and settling of the bill of exceptions after the expiration of the term of court.
It will be remembered that, within the term-of the court and on the same day the verdict was rendered in this case, the defendant gave notice of the motion for t\ new trial; but the judge, upon cause shown as we have seen, within four days after the rendition of the verdict and
The motion for new trial was overruled, the defendants were allowed ninety days in which to prepare and have settled and signed its bill of exceptions, and the bill of exceptions was prepared, presented and signed by the judge within the ninety days allowed therefor.
The eighth rale of practice of the circuit courts requires that'“bills of exception shall be made up and signed during the term of the court at which the verdict is rendered, or trial had, unless, by special order, further time is allowed.” Section 2 of Chapter 5403, Acts of 1905, provides ^tliat “the judge shall have the power to hear and determine any motion for new trial in vacation, and any such adjudication thereof in vacation shall be entered in the minutes of the court, and shall have the like force and effect as if made during term time.”
In the case of Greeley v. Percival, 21 Fla. 428, the first head-note is as follows: “Where there is a verdict and motion for a new trial, and a denial of the motion, and subsequently at the same term there is a vacation of the order refusing- a new trial, and a continuance of the
Section 2, Chapter 5403, of our statute of 1905 expressly authorizes the judge to- continue the motion for new trial to a time in Amcation, and to act upon and determine the same, “and any adjudication of same shall have like force and effect as if made during term time;” and in McGee v. Ancrum, supra, this court held that on the hearing o,f a motion for new trial the judge is holding a term of court as to that case. I conclude, therefore, that Judge Palmer had the power not only to- hear and determine the motion for new trial when he did, but also that he had the power to make the order extending the time for preparing and presenting the bill of exceptions therein.
The last question raised by the motion to strike, and' remaining for our decision, is the contention that “the signing and settling of the bill of exceptions herein by Judge Palmer was unauthorized and invalid.” The argu
In 3 Ency. Pl. & Pr. 452, 455, it is said: “Ordinarily the bill must be authenticated by the signature of the judge to whose rulings the exceptions were taken * * * where court is held by more than one judge, the presiding judge is the proper person to sign the bill. * * * Where the special judge holds the trial, he alone is authorized to sign the bill of exceptions.” In Indiana it was held that where a special judge, acting under appointment from the duly elected judge, grants leave to file a bill of exceptions, and fixes a time within which it shall be filed, he may properly sign it after his term expires.” Shugart v. Miles, 125 Ind. 445, 25 N. E. Rep. 551. In Maryland, in State v. Weiskittle, 61 Md. 48, the court says: “In this cáse it is not admissible for another judge to pass upon the correctness of his predecessor’s ruling in such case.” The ground of this ruling is stated in note on page 455, 3 Ency. Pl. & Pr., to be, that the settlement and allowance can only be made by the judicial official who is personally cognizant of the proceedings, and can testify from his personal knowledge to the accuracy of the bill, and that the exceptant should not lose the benefit of his exceptions because of an event which he could in no wise prevent.” But this question is not an open one in this State. The first head-note in the cáse of Bacon v. State, 22 Fla. 46, is as follows: “When a judge of one circuit holds a term of court in another circuit, and during the term an order is entered upon the minutes allowing time after the adjournment for settling a bill of exceptions in a case tried by him, he is
In that case, Judge Foster acted just as Judge Palmer has done in signing the bill of exceptions.
The motion to strike the bill of exceptions herein should be denied.
The facts of this case are given in the opinion of Justice Parkhilr.
I am of opinion that the motion to strike the bill of exceptions should be denied for the following reasons:
1st. Under Section 1, Article Y, of the Constitution of
2nd. The judicial powers of a circuit judge are not limited in their exercise by the constitution to his circuit, or to cases arising in his circuit. He is simply required to reside in his circuit and hold certain terms of court therein. See Sections 8 and 11, Article Y, Constitution of 1885, as amended. Under Section 1078, Revised Statutes of 1892, supra, he can act as a judge and exercise judicial power in cases arising in other circuits than his own. State ex rel. Florida Pub. Co. v. Hocker, supra, and Simonton v. State ex rel. Turman, supra. Under
3rd. When Judge Palmer, of the third circuit, went into the eighth circuit, under the governor’s order, to act as judge of that circuit for two weeks, he was invested with and canned with him- all the judicial powers of a circuit judge under the constitution, express, implied or incidental. State ex rel. Attorney General v. Gleason, 12 Fla. 190, text 209; Ex parte J. C. H., 17 Fla. 362, text 369; State ex rel. Smith v. Burbridge, 24 Fla. 112, text 126, 3 South. Rep. 869.
4th. Chapter 5403, Laws of 1905, is a remedial statute, and should be liberally construed in the interest of right and justice. Its provisions applied just as much to Judge Palmer in the trial of the instant case in the eighth circuit as if he were trying it in the third circuit. Efe derived his powers in the premises not from the order of the governor, but from the constitution and the act of the legislature. Hie had all the express, implied and incidental powers of a circuit judge. The first section of the act contemplates that the judge who tries a case is the proper judge to make an order for the extension of time for making and presenting a motion for a new trial. It seems to me that the second section of the act contemplates that the same judge who tried the case shall hear and dispose of the motion for a new trial. I also think that as the trial judge is the proper judge to settle the bill of exceptions (Bacon v. State, 22 Fla. 46, text 50) that Judge Palmer had authority, under Section 973, Revised Statutes of 1892, to make an order fixing the
In conclusion, I am of opinion that chapter 5403 is not unconstitutional because it was not approved by the governor. The provision of section 4 that “This act shall take'effect immediately upon its passage and approval” was intended to escape the provision in Section 18,. Article 3, of the constitution of 1885, which fixed the date when an act.should go into effect. This chapter became a law under Section 28, Article 3, of the constitutión.
Concurrence Opinion
I concur in the conclusions reached in this case by Justices Hocker and Parichill upon the motion to strike the bill of exceptions from the transcript brought here upon writ of error for the following reasons: Strictly speaking, the question as to whether the judge of the third circuit had authority to hear and determine the motion for new trial in the case pending in the eighth circuit is not one purely of jurisdiction. My view is that each and every of our circuit judges has full and complete judicial power and authority under the constitution to hear and determine any( cause, or any question in any
A bill of exceptions for use on appellate review may be said to be "made up” in the main during the progress of the trial; but, with all the courts universally, we have held that a motion for new trial, and the ruling thereon, and the exception to- such ruling, forms and must form a part of the bill of exceptions. A complete bill of exceptions cannot, therefore, be made up until after the motion for new trial is heard and determined, because such essential parts of such bill are not in existence, until that time — ■ neither can it be known, either by the judge or the parties to the cause, that any bill of exceptions will ever be necessary, or by whom it will be applied for, until after the motion for new trial is passed upon, and according to the rule in McGee v. Ancrum, supra, when such an order is made in vacation it is virtually made in term as to the case in which it is made. The motion to strike the bill of exceptions should be denied, and it is hereby so ordered.
Dissenting Opinion
(OAssmUng) : I am informed by my associates that they cannot concur in the opinion
The defendant in. error has made a motion to strike the bill of exceptions from the transcript of the record upon the following grounds:
“1st. Because the bill of exceptions was signed in vacation, without an order made within the term of the court granting time for and authorizing the signing and settling of the bill of exception after the expiration of the term of court.
2nd. Because the bill of exceptions was not lawfnlly signed and settled by the circuit judge, in accordance with the statutes and rules of practice in such cases.
3rd. Because Honorable B. H. Pdlmer, judge of the third judicial circuit of Florida, was not authorized by the statute to hear and determine, or to make any order ruling upon the motion for a new trial in said cause, out
. 4th. The order made by Honcjrab-le Ib H. Palmer, judge of the third judicial circuit, on December 15th, 1906, out of the eighth circuit, and within the third circuit-a'nd after the expiration of his term of transfer, authorizing the signing and settling of the bill of exceptions, was invalid and without authority of law.
5th. The signing and settling' of the bill of exceptions on the 26th day of January, 1907, by Honorable B. H. Palmer, judge of the circuit court of the third judicial circuit of Florida, was unauthorized and invalid, and said bill of exceptions, therefore, has no verity of validity, and is not properly a record of this cause.”
It is undoubtedly true, as contended by defendant in error, that prior to the enactment of Chapter 5403, Laws of '1905, motions for new trials were required to be made in term time and within four days after the verdict sháll have been rendered, in accordance with the provisions of Section 1180 of the Revised Statutes of 1892, Section 1608 of the General Statutes of 1906, which is as follows: “Every motion for a new tidal shall be made by filing the motion,and the reasons therefor in writing in the court, or by placing the motion and the reasons therefor on the motion docket, within four days after the verdict shall have been rendered, and during the same term; and such motions standing over from one term to another shall operate as a supersedeas only when so ordered by the court. And the entry of such motion shall not prevent the entry of judgment on the verdict.”
This statute was originally enacted in 1828, and has been construed by this court. See Dupuis v. Thompson, 16 Fla. 69; William H. T. v. State ex rel. M. C., 18 Fla.
Chapter 5403, Laws of 1905, is as follows:
‘‘AN ACT Relating to Motions for New Trials in Civil Cases.
Be it Enacted by the- Legislature of the State of Florida.
Section 1. Motions for new trials in civil cases shall be made within four day* after the rendition of the verdict and during the same term, but the judge upon cause shown may, within such four days and during the same term, by order, extend the time for the making and presentation of such motions, not to exceed fifteen days from the rendition of the verdict. In all cases of extension of the time for making such motions, a copy of the motion to be presented to the judge shall be served on the opposite party, or his attorney, with three days’ notice of the time and place that the same will be presented and heard.
It shall not be necessary to incorporate in any motion for a new trial any matter in pais previously excepted to, for the purpose of having the same reviewed by an appellate court.
Sec. 2. The judge shall have the power to hear and determine any motion for new trial in vacation and any such adjudication thereof in vacation shall be entered in the minutes of the court and shall have the like force and effect as if made during term time. •
Sec. 3. The provisions of this act shall not apply to criminal causes.
Sec. 4. All laws or parts of law's in conflict with the provisions of this act are hereby repealed, and this 'act shall take effect immediately upon its’passage and approval.
Became a law without the approval of the governor.”
Section 28 of Article 3 of the Constitution of 1885 expressly provides that “if any bill shall not be returned within five days after it shall have been presented to the governor (Sunday excepted) the same shall be a law, in like manner as if he had signed it.” This language 'is plain and clear and being a part of the constitution ie mandatory and binding. As is said in 1 Lewis’ Sutherland Statutory Construction, Section 172, “When a bill becomes a law by the non-action of the executive, under constitutional regulations, the non-action of the executive is a quasi approval, not complete until the lapse of the time prescribed for his affirmative action under the given conditions.”
I am of the opinion that this contention of the defendant in error must fail and that Chapter 5403, Laws of 1905, did become effective as a law and is now in force.
Turning to the record, I find that the Hon. Bascom H. Palmer, judge of the third judicial circuit of Florida, presided and acted ás judge of the eighth judicial circuit of Florida under and by virtue of two separate orders, which are as follows:
Executive Department,
Tallahassee, Fla., Oct. 22nd, 1906.
WHEREAS, It has been officially made known to me that the Honorable Bascom H. Palmer, judge of the third judicial circuit of Florida, is disqualified to sit in judgmen on certain causes pending in the circuit court in and for the county of Suwannee, state of Florida, which causes are for trial at the fall term A. D. 1906, of the said court, to be held in and for Suwannee county, Florida;
NOW, THEREFORE, Acting under the authority vested in the governor of the state of Florida, by the constitution and laws of Florida, I do hereby order that the Hon. Bascom H. Palmer, judge of the third judicial circuit of Florida, and Hon. James T. Wills, judge of the eighth judicial circuit of Florida, do exchange circuits for the period of two weeks, beginning from and including Monday, the 12th day of November, A. D. 1906, and ending Saturday, November 24th, 1906. The Hon. Bascom H. Palmer to preside and act as the judge of the eighth judicial circuit for the said period of time, and the Hon. James T. Wills to preside and act as judge of the third judicial circuit for the said period of time.
In Testimony Whereof, I have hereunto set my hand and caused the great seal of the state to be affixed at Tallahassee, the capital, this 22nd day of Octboer, A. D. 1906.
(SEAL) N. B. BROWARD,
Governor of Florida.
By the Governor: Attest:
(SEAL) H. CLAY CRAWFORD,
Secretary of the State of Florida.”
Executive Department,
Tallahassee, Fla., Oct. 27th, 1906.
WHEREAS, It is officially made known to me that there exists a necessity for a change of circuits between Hon. Bascom H. Palmer, judge of the third judicial circuit of Florida, and Hon. James T. Wills, judgo of the eighth judicial circuit of Florida, for the two weeks commencing Monday, November 26th, 1906;
NOW, THEREFORE, Acting under the authority vested •in the governor of the state of Florida, by the constitution and laws of said state,
I do hereby order the Hon. Bascom H. Palmer, judge of the third judicial circuit of Florida, and the EBon. James T. Wills, judge of the eighth judicial circuit of Florida, to exchange circuits for the period of two weeks, beginning from and including Monday the 26th day of November, 1906, the Hon. Bascom H. Palmer to preside and act as judge of the eighth judicial circuit of Florida, for the said period of time, and the Hon. James T. Wills to preside and act as judge of the third judicial circuit for the said period of time.
In Testimony Whereof, I have hereunto set my hand and caused the great seal of the state to be affixed at Tallahassee, the capital, this 27th day of October, A. D. 1906.
(Signed) N. B. BROWARD,
(Seal) Governor of Florida.
By the Governor: Attest:
(Signed) H. CLAY CRAWFORD,
“Secretarry of the State of Florida.”
These orders were made under Section 8 of Article V
Done and ordered in open court on this 1st day of December, A. D. 1906.”
1 am clear that, under the provisions of section 1 of chapter 5403, Judge Palmer had the power and authority to make such order. I am equally clear that, under the provisions of section 2 of such chapter, the judge making such order has the power to hear and determine the motion for a new trial in vacation, if such judge has any poAver to act upon such motion at all. Just here I encoun
1. The Honorable Bascom H. Palmer, judge of the third judicial circuit, is without authority to hear and determine this motion or to make any order in this cause pending in Alachua county, Florida, in the eighth judicial circuit, while out of and beyond the territorial limits of said eighth judicial circuit, to-wit: at Lake City. Florida, in the third judicial circuit.
Judge Palmer made an order overruling these objections, and also'on the same day, the 15th of December, 1906, made the following order on the motion for a new trial: “The motion for new trial came on to be heard and was argued by counsel, and upon consideration thereof, it is ordered and adjudged that said motion b8 denied and defendant allowed ninety days in which to prepare and have settled and signed his bill of exceptions. To which ruling defendant excepted, and exceptions noted. Done and ordered in vacation the 15th day of Dec., 1906.”
'On the 26th day of January, 1907, Judge Palmer also signed the bill of exceptions, containing therein the folloAving recital:
“And inasmuch as the said several matters objected to or insisted upon and considered by the court, do not appear by the record, the said defendant did, on the 26th day of January, A. D. 1907, after the expiration of said term, by virtue of a special order herein made, propose this, its bill of exceptions, to said rulings of said judge, and request him to sign the same, Avhich after due notice
I do hereby certify that the foregoing bill of exceptions contains all the evidence introduced at the trial in the above stated cause.
B. H. PALMER,
Judge of the Third Judicial Circuit, presiding in said trial, by the order of the. Governor, instead of the Judge of the Eighth Judicial Circuit.”
Assuming for the moment that Judge Palmer, although he had left the eighth circuit and returned to his own circuit, had the authority to settle and sign the bill of exceptions, if presented to him within the time required by law, upon the authority of Bacon v. State, 22 Fla. 46, and authorities therein cited, did he have the like power to pass upon the motion for a new trial ? It may well be that the settling and signing of a bill of exceptions, strictly speaking, is not a judicial act, but the “performance of a duty” by a judge as to the certification of certain facts which had transpired before him. I am strengthened in this view by the fact that section 1268 of the Revised Statutes of 1892 empowers and authorizes three persons to sign the bill of exceptions in the presence of the judge, when the judge refuses to sign the same, “which bill shall be as valid and have the same force as though it were signed by the judge of said court.” If it were a judicial act, this section would contravene section 1 of Article V of the constitution of 1885. See Williams v. Pitt, 38 Fla. 162, 20 South. Rep. 936, construing section 1268 of the Revised Statutes of 1892.
I have no doubt, however, that passing upon and making an order upon a motion for a new trial is a judicial act, pure and simple, in which the judge exercises the judicial
If, then, Judge Wills, the judge of the eighth circuit, had the power to pass upon the motion for a new trial in
If Judge Palmer had no judicial powers to exercise as judge of the eighth circuit, at the time he made the order denying the motion for a new trial and allowing defendant ninety days in which to prepare and have settled and signed its bill of exceptions, then the entire order must be regarded as a nullity. Even then if chapter 5403, laws of 1905, by necessary implication conferred upon the judge the power to make an order extendinng or allowing time in which to prepare and have settled and signed a bill of exceptions, after the time he made an order on the motion for a new trial, a point which I am not called upon to determine now, it would not avail the plaintiff in error here. Such an order to be effectual must be a valid order made by one having authority to make it. Under the repeated adjudications of this court it would seem clear that the motion to strike the bill of exceptions would have to be granted. Undoubtedly this would be true unless we should determine that the motion for a new trial still remains pending undisposed of, in which event the principle enunciated in. Stephens v. Hale, 33 Fla. 618, 15 South. Rep. 251, would seem to govern, and the motion to strike should be denied, a motion to dismiss being the proper remedy. Section 1 of Chapter 5403, Laws of 1905, provides that the judge may by order “extend the time for the making and presenting of such motions, not to exceed fifteen days from the rendition of the verdict.” This w ould seem to require that the motion not only had to be made but to be presented as well within the fifteen days. If this be true, of course presentation to the proper judge is meant, as presentation to the wrong judge would be equivalent to no. presentation at all. We have held re
Dissenting Opinion
(dissenting) : I concur in the conclusion reached by the chief justice on this motion.
While this court in State ex rel. Florida Pub. Co. v. Hocker, judge, 35 Fla. 19, 16 South. Rep. 614, held that a judge of one circuit could entertain over protest a demurrer to a declaration in a cause pending in another circuit the judge whereof was disqualified to act in the; particular case, and that decision may fairly be extended to a cause pending in a circuit whereof the judge is physically incapacitated from acting, I do think it cannot avail in the instant case.
The authorities cited by the chief justice and the reasonings there employed show conclusively to my mind that Judge Wills had the jurisdiction and the power to entertain the motion for a new trial after the expiration of the particular days designated by the governor under the provision of the constitution for the exchange of circuits.
The conclusion reached by the majority of the court
I do not understand the majority of the court to hold that Judge Wills was without jurisdiction to entertain the motion for a new trial, and should a similar case again arise, the two judges both act and give conflicting judgments, which would be the law of the case? Had Judge Palmer ceased to be judge between the expiration of the governor’s order and the presenting of the motion, to whom should the motion be presented?
It is by a strained construction the legislation is extended to , include the substitution of another judge for the one provided by the constitution, except where the latter judge is wholly unable to act and the speedy administration of justice demands a substitution more prompt than that provided for in the constitution itself; the language of the legislation is not to my understanding broad enough to cover this condition, and I am not at present prepared to say that the legislature has the power to thus deprive a qualified judge willing and able to act of his jurisdiction or to make him share that jurisdiction with another.
The motion to strike should be granted.