Opinion
No. 66-572.
March 21, 1967.
Appeal from the Civil Court of Record for Dade County, John R. Blanton, J.
Russell C. Gay, Miami, for appellant.
Richard C. Carter, Jr., Miami, for appellee.
Before HENDRY, C.J., and PEARSON and BARKDULL, JJ.
Appellant, defendant in the trial court, seeks review of an adverse final judgment in a cause tried non-jury as to liability on an insurance contract. The appellant presents two points on appeal: First, that the evidence failed to support the trial court's finding for the plaintiff. Second, that the trial court erred in striking its motion for a new trial. We affirm.
As to the first point, although the evidence was in conflict, it was within the province of the trier of the fact to resolve these conflicts and, viewing the record in a light most favorable to the appellee as we are required to do, at this state of the proceeding we find competent, substantial evidence to support the finding of the trial judge. See: Ross v. Florida Sun Life Insurance Company, Fla.App. 1960, 124 So.2d 892; Bardee Corporation v. Arnold Altex Aluminum Co., Fla.App. 1961, 134 So.2d 268; LaFrance Cleaners Dyers, Inc. v. Argenio, Fla.App. 1962, 147 So.2d 330, 331. As to the second point, it was error for the trial judge to strike the motion for new trial when it was filed within ten days of the rendition of the final judgment in a non-jury case. See: Rule 2.8(b), Florida Rules of Civil Procedure, 1965 Rev., 31 F.S.A. However, we have examined the motion for new trial and conclude that it would have been erroneous for the trial judge to have granted same and, therefore, we find that this error was "harmless". See: Prince v. Aucilla River Naval Stores Company, 103 Fla. 605, 137 So. 886; Glass v. Parrish, Fla. 1951, 51 So.2d 717; § 54.23, Fla. Stat., F.S.A. 2 Fla.Jur., Appeals, § 358.
The final judgment here under review is hereby affirmed.
Affirmed.