85 Fla. 517 | Fla. | 1923
A motion is made to strike the motion for new trial and also the bill of exceptions contained in the transcript because the motion for new trial was not' presented to the Court within fifteen days from the rendition of the verdict as authorized by an order of the Court under Section 2811 Revised General Statutes, 1920, and because the bill of exceptions was not presented to the Court for settlement within the time required by law.
Section 2811 Revised General Statutes, 1920, is as follows:
“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 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 the Ap*519 pellate Court. Tbe provisions of this Section shall not apply to criminal causes. ’ ’
It appears thát tbe verdict for tbe Defendant in an action of ejectment was rendered September 7, 1922. On September 11, 1922, tbe Court granted an extension of fifteen days from September 7, for filing a motion for new trial. On September 21, 1922, tbe Plaintiff filed a motion for new trial in tbe Clerk’s office. It does not appear that tbe motion for new trial was presented to tbe Judge within fifteen days from tbe rendition of tbe verdict or that “a copy of tbe motion to be presented to tbe Judge” was “served on tbe opposite party or his attorney within three days notice of tbe time and place that tbe same will be presented and beard” as is specifically required by tbe quoted Statute.
In denying a motion to strike tbe motion for new trial that bad been filed with tbe Clerk of tbe Circuit Court, tbe Circuit Judge on November 1, 1922, made tbe following order: ‘ ‘ This motion having been presented and duly argued by counsel for the respective parties and it appearing to tbe Court that tbe motion for new trial in this ease sought to be stricken was filed with the Clerk of this Court within tbe time allowed by an order extending tbe time, wherefore this motion is overruled and denied. Defendant excepts. George W. Whitehurst, Judge.”
On tbe same day tbe trial Court overruled tbe motion for new trial and allowed ninety days for presenting a bill of exceptions.
As tbe Statute specifically provides that an order extending the time for making and presentation of a motion for a new trial may “be made within four days after the rendition of the verdict and during the same term,” such
Rule 97 provides: ‘ ‘ The bill of exceptions shall be made up and signed during the term of Court at which the verdict is rendered or trial had, unless by special order further time is allowed. In case such special .order is made, it shall be entered in the minutes, and in making up the bill of exceptions the fact that such an order was made shall be mentioned therein, or shall -otherwise appear in the record. ’ ’
Where a motion for new trial is duly presented to the judge with the required notice pursuant to an order properly made under Section 2811 Revised General Statutes, 1920, the judge may, when the motion is-disposed of, make an order stating the time within which a bill of exceptions in the case shall be presented to the judge for authentication, which order shall be in writing and duly entered in the minutes of the court with the order adjudicating the motion. See Section 2532 Revised General Statutes, 1920. When a motion for new trial is duly made in term time or is duly made and presented after adjournment of the term, pursuant to an order made under Section 2811 Revised General Statutes, 1920, the Court is for the purposes of such motion regarded as in session and an order extend
In this ease the motion for new trial was not duly presented to the judge within the time fixed by the order made under Section 2811 Revised General Statutes, consequently the judge was not authorized to adjudicate the motion for a new trial, or to make an order under Rule 97 extending the time for presenting a bill of exceptions in the case. As a consequence the motion made here to strike from the transcript of the record brought here on writ of error, both the motion for a new trial and the bill of exceptions must be and is hereby granted.
As the assignment of errors is predicated solely upon the bill of exceptions which is stricken, there remains no matter presented for review, therefore the judgment be and is hereby affirmed. Bardwell v. State, 49 Fla. 1, 38 South. Rep. 511; Horn v. State, 40 Fla. 472, 24 South. Rep. 147; Anderson v. Winner & Whaley, 50 Fla. 177, 39 South. Rep. 31; Lasseter & Co. v. Zapf, 57 Fla. 89, 48 South. Rep. 749; Carter v. Stockton, 60 Fla. 33, 53 South. Rep. 450.
Affirmed.