No. 67-53 | Fla. Dist. Ct. App. | Nov 15, 1967
Lead Opinion
This is an attempted appeal by Campus University Apts., Inc., a Florida corporation, from a final money judgment for $4,143.89 entered by the Civil and Criminal Court of Record for Pinellas County, in favor of Audlane Lumber & Builders Supply, Inc., a Florida corporation, and against Campus University and one Kim Greenough.
The original final judgment is a part of the record-on-appeal, here, and shows to have been signed by the trial Judge, and filed with and recorded by the Clerk of said Court in Official Record Book 2478 at page 528, all on October 21, 1966.
On January 30, 1967, notice of appeal to this Court was filed by Campus University from said judgment, which judgment was described as “bearing date the 21st day of October, 1966, and rendered on the 1st day of December, 1966”. Nowhere else in the record does it appear what was meant by the recital that the judgment was “rendered” on December 1st, 1966. Certain it is, however, that we cannot accept such ex parte recital as authentic, in the absence of an affirmative showing that the judgment was rendered on any date other than when it was signed and recorded.
Rule 1.3 of- the Florida Appellate Rules, 32 F.S.A. defines “rendition” as follows:
“ ‘Rendition’ of a judgment * * * means that it has been reduced to writing, signed and made a matter of record * * A paper is deemed to be recorded when filed with the clerk and assigned a book and page number”. (Emphasis supplied).
From the record here this would definitely fix the date of “rendition” of the judgment appealed as beings October 21st, 1966.
It is true that said Rule 1.3 goes on to provide that—
“Where there has been filed in the lower court a timely and proper motion * * * for a new trial, * * * the * * * judgment * * * shall not be deemed rendered until such motion * * * is disposed of.”
But the record here does not indicate or contain any motion for new trial or “other timely post-trial motion or petition permitted by the Rules”. There does appear in the assignments of error a statement that
The obvious importance of all this is that if the time for taking appeal began to run on October 21st, 1966, the notice of appeal was filed more than the maximum period of 60 days allowed under Rule 3.2 subd. b, whereas if the time began to run on December 1st, 1966, or any time within 60 days prior to January 30, 1967, it would be in time.
We have no alternative except to hold that the judgment appealed was rendered on October 21, 1966, the date it was signed, filed, and recorded; and the matter being strictly jurisdictional, this appeal must be dismissed ex mero motu, as not having been taken within the time provided by the Rules.
So ordered.
Rehearing
ON PETITION FOR REHEARING AND PETITION FOR REINSTATEMENT OF APPEAL
Appellant in this case has filed what it terms a “PETITION FOR REHEARING” to the opinion and order of this Court on November 15, 1967, dismissing ex mero motu the appeal previously lodged here, and has also filed a “PETITION FOR REINSTATEMENT OF APPEAL AND FOR CORRECTION AND COMPLETION OF RECORD ON APPEAL”.
Attached to both said petitions are affidavits stating that when the matter of record deficiencies was raised at oral argument here on October 18, 1967,. appellant’s counsel then informed the Court that, although not disclosed in the record, a motion for new trial had been filed and ruled upon in the lower Court, which had tolled the time allowed for appeal. Appellees’ counsel had tacitly agreed such was the case. Ap-pellees’ counsel in writing now advises the Court that, at the time of argument, he made “no concessions” concerning said record deficiencies.
Our recollection is that we called attention of appellant’s counsel to the matter during argument, beyond which we do not specifically recall. However, it is immaterial. One of the oldest principles of remedial law is that jurisdiction of the Court, particularly on the appellate level, can never be conferred merely by consent of the parties, where the record indicates lack of jurisdiction.
After the argument, we waited for almost a month to give appellant’s counsel opportunity to remedy the jurisdictional defect, if it could be done. No such attempt was made, resulting in our order of dismissal of our own motion on November 15, 1967. So much for the representations made in the two petitions aforesaid.
As to the “PETITION FOR REHEARING” we know of no authority or rule which permits filing of such petition directed to an order of dismissal, especially for jurisdictional defects appearing in the record. So the “PETITION FOR REHEARING” will be stricken ex mero motu. The “PETITION FOR REINSTATEMENT OF APPEAL, etc.” will be denied on the merits.
In an abundance of caution, however, (Lane v. Most Worshipful Union Grand Lodge, etc., Fla.App. 1965, 180 So. 2d 187" court="Fla. Dist. Ct. App." date_filed="1965-11-16" href="https://app.midpage.ai/document/lane-v-most-worshipful-union-grand-lodge-free--accepted-masons-7416189?utm_source=webapp" opinion_id="7416189">180 So.2d 187) and further because there has heretofore apparently been no specific pronouncement by this Court that a petition for rehearing is not permitted to an order of dismissal, we herewith, in the exercise of our inherent appellate authority, grant ex mero motu the “PETITION FOR REHEARING” and also the “PETITION FOR REINSTATEMENT OF APPEAL, etc.” aforesaid.
Affirmed.