71 Fla. 575 | Fla. | 1916
Lead Opinion
Buchan recovered a judgment against the carrier for a carload of watermelons which the carrier did not on June 8th, 1912, “take and deliver.”
A motion is made here to strike the bill of exceptions on the ground that the motion for new trial, though made during,the term of court, was disposed of in vacation. The motion is made upon the theory that the court is without jurisdiction to pass upon a motion for new trial except in term time.
Sections 2 and 3, Chapter 5403 Acts of 1905, are as follows:
“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. 1343a Compiled Laws of 1914.
The motion for new trial having been, as contemplated by the statute, “made within four days after the rendition of the verdict and during the same term,” and not having been disposed of during term time, the motion was properly disposed of during vacation. The motion to strike is denied.
The plaintiff testified that “I live at McCall, Florida. During June, 1912, I requested the Charlotte Harbor & Northern Railway Company to place a car for me on the siding at McCall to be loaded with watermelons. McCall is a non-agency station; that is, there is no agent kept at the station house, but patrons of the Railway Company
A witness for the defendant testified: “I am Superintendent of the Charlotte Harbor & Northern Railway Company and held that position on June 8th, 1912. At that time the said railroad was opening a tri-weekly freight service each way. Northbound freight trains, according to schedule, were due to go north from Boca Grande, in Lee County through McCall and Arcadia, in DeSoto County, to Mulberry, in Polk County, on the morning of Saturday, Tuesday and Thursday of each week. McCall is a non-agency station between Boca Grande and Arcadia. There is no physical connection between the Charlotte Harbor & Northern Railway and any other railroad at any point between Boca Grande and Arcadia. On the morning of June 8th, 1912, the regular freight train went north from the southern terminus of our line at South Boca Grande to the northern terminus at Mulberry, in Polk County, but the southbound passenger train was held up at a point a few miles above Arcadia because of a washout that had occurred. During May and June, 1912, there was an unusual amount of rain and the creeks and rivers had risen so that we were having a large amount of trouble in keeping our track in such condition that trai'ns could be operated over it. This washout that occurred above Arcadia on June 8th, 1912, prevented the southbound passenger train from coming into Arcadia on that day, and therefore, left us without a passenger train running north from Boca Grande on the afternoon’s schedule. To meet this emergency and take care of the mail service, express and passengers who were willing to put up with such accommodation, I took
Another witness for the defendant testified: “I was in the car with Mr. Goucher on the afternoon of Saturday, June 8th, 1912. I saw the car that was being loaded with watermelons by Mr. Buchan. That car was on the siding about three hundred feet from where the train stopped. I saw melons being loaded from a wagon into the car as the train stopped at McCall. Mr. Goucher asked Mr. Buchan if he had anything to go north and told him of the washout that had occurred above Arcadia. Mr. Buchan gave Mr. Goucher the mail and some packages of express, and Mr. Goucher asked him if he had anything else to go and Mr. Buchan said he had a car of melons. Mr. Goucher then asked him where the car was and Mr. Buchan pointed to the car that was being loaded. Mr. Goucher asked Mr. Buchan if he had his bill of lading made out and Mr. Buchan said that the car was not ready and upon orders from Mr. Goucher the train proceeded north. With the exception of two passenger trains, one each way, which operated the following day, Sunday, June 9th, 1912, all traffic except work trains was suspended on the Charlotte Harbor & Northern Railway between Arcadia and Boca Grande from that time for about three weeks on account of the bridge over Peace River between McCall and Arcadia having been washed out by the rising of the river on the night of Sunday, June 9th, 1912.”
It appears that the plaintiff did not have his car loaded when the regular freight train passed McCall on
This evidence shows the car of watermelons was not
The judgment is reversed.
Rehearing
In a petition for rehearing it is suggested that the court misconstrued the contention of the defendant in error on the motion to strike the bill of exceptions. The contention is “that a trial court has no jurisdiction to pass upon a motion in vacation, unless during the term time, the court made an order that the said cause be heard in vacation'.”
The statute provides that “motions for new trials in civil cases shall be made within four days after the rendition of the verdict and during the same term, but the judge upon cause shown may within such four dajrs and during the same term by order extend the time for the making and presentation of such motions, not to exceed fifteen day's from the rendition of the verdict. In cases of extension of 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
A bill of exceptions may present for review other matters than a motion for new trial; and even if a motion for new trial is not duty made and passed upon and such proceedings property included in a bill of exceptions, a motion to strike the bill of exceptions will not be granted if other matters than the motion for new trial are property presented in the bill of exceptions.
The statute above quoted requires an order to be duty made for extending the time for making a motion for a new trial, but does not require an order to be made during term time that a motion for new trial when duty made may be heard in vacation. Before the enactment of Section 2, Chapter 5403 Acts of 1905 set out in the main opinion it was held under section 1343 General Statutes that a motion for new trial duty made in term time and continued to a day in vacation may be heard in vacation. See McGee v. Ancrum, 33 Fla. 499, 15 South. Rep. 231; Sec. 1343 Compiled Laws of 1914.
The Act of 1905 clearty authorizes the trial court to pass upon a motion for new trial in a civil action in vacation when such motion had been duly made, but not disposed of, in term time, though no order Avas made that the motion may be heard in vacation.
Rehearing denied.
All concur.