Hammett v. Lyte Lyne, Inc.

150 So. 2d 235 | Fla. | 1963

Concurrence Opinion

DREW, Justice

(concurring specially).

In addition to what is said in the foregoing decision, I think it appropriate to observe that the statute authorizing an appeal from an order granting a new trial ^* and the statute supplementing it and prescribing the scope of review in such cases ^** are, by the express provision of Florida Appellate Rules, made rules of this Court ^*** and so, whether such should be done by statute or rule, the requirement that the trial judge shall specify the grounds upon which he grants a new trial is a salutary and essential one. If he fails to do so, there is nothing which the lawyers may argue in the appellate court or the appellate court may decide because the law is that “no other grounds than those specified by the trial judge, as a basis for the order granting the new trial, shall be considered as arguable upon said appeal.” For this, as well as the reasons expressed by CALDWELL, J., I concur.

THORNAL and O’CONNELL, JJ., concur.

* Section 59.04 F.S.1961, F.S.A.

** Section 59.07(4), F.S.1961, F.S.A.

*** Florida Appellate Rules 1962 Revision, Rule 1.4, 31 F.S.A. provides “All statutes not superseded hereby or in conflict herewith shall remain in effect as rules promulgated by the Supreme Court.”

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Lead Opinion

CALDWELL, Justice.

Petitioner by writ of certiorari seeks review of a decision of the District Court of Appeal, Second District, which affirmed the lower court’s granting a new trial without specifying the grounds therefor. The facts of the case appear in the District Court’s opinion.¹

Conflict is alleged with the decisions of other district courts of appeal and with pri- or decisions of this Court to the effect that a new trial order must specify the particular grounds upon which it is granted. We find jurisdiction under Fla.Const., Art. V, § 4(2), F.S.A.

Florida Statute, Section 59.07(4), F.S.A. and Rule 2.6(d),² Florida Rules of Civil Procedure, 31 F.S.A., require that when the trial court enters an order granting the motion for a new trial he shall indicate in the order the particular ground or grounds upon which the motion was granted.

The decision under review affirmed the order granting a new trial which did not set out the grounds therefor, upon the theory of the exceptions supposedly made in the cases of Kent v. Tallahassee Motor Co., 141 Fla. 789, 193 So. 821 (1940) and Booker v. Saunders Realty Co., 53 So.2d 912 (Fla.1961).

We are of the opinion that the requirement that the trial judge indicate the particular grounds upon which a new trial is ordered is mandatory.'³ The record in this cause furnished no basis upon which noncompliance may be excused.

Petition for writ of certiorari is granted. The judgment of the District Court of Appeal, Second District, is quashed and the cause remanded for entry of an order in accordance with this opinion.

ROBERTS, C. J., and TERRELL, THOMAS, THORNAL and O’CONNELL, JJ., concur. DREW, J., concurs specially with opinion.

1 . 142 So.2d 745 (Fla.App.1962).

2 . Effective July 1, 1962, Rule 2.6, F.R. C.P., was amended by deleting paragraph (d) which is now paragraph (f) of Rule 2.8, F.R.C.P., amended. See, In re Florida Rules of Civil Procedure, 139 So.2d 129 (Fla.1962).

3 . Ebersole v. Tepperman, 65 So.2d 564 (Fla.1953); Morton v. Staples, 141 So.2d 806 (Fla.App.1962); Webb City, Inc. v. Lugerner, 138 So.2d 531 (Fla.App.1962); Gaskill v. Montague, 128 So.2d 420 (Fla.App.1961); Fulton v. Poston Bridge & Iron, Inc., 122 So.2d 240 (Fla. App.1960); Means v. Douglas, 110 So.2d 88 (Fla.App.1959).