Opinion
No. 59-747.
March 23, 1960.
Appeal from the County Judge's Court for Dade County, George T. Clark, J.
Christie, Christie Shepard and Francis A. Majewski, Miami, for appellant.
Turner, Hendrick Fascell and Robert M. Brake, Coral Gables, for appellee.
The appellee, Margaret Mason Wartman, as executrix of the estate of George H. Wartman, Jr., has moved to dismiss this appeal upon the following ground:
"1. The order from which this appeal is taken was entered by the Honorable George T. Clark, one of the Judges of the County Judge's Court in and for Dade County, Florida, on November 12, 1959, and recorded in the probate records of said court on said date. Notice of appeal in this cause was filed on December 18, 1959 and recorded in said court on said date. Florida Statutes, Section 732.16 [F.S.A.] modifies Rule 3.2 [subd.] b of the Florida Appellate Rules [31 F.S.A.] by providing that appeals from probate matters shall be taken within thirty (30) days from and after the entry of the Order appealed from and in the cause at bar the notice of appeal was filed more than thirty (30) days from and after the Order appealed from."
We find the ground is well taken and the appeal is dismissed.
In Rosenblum v. Boss, Fla.App. 1958, 101 So.2d 596, we held on authority of Codomo v. Shaw, Fla. 1958, 99 So.2d 849, that the constitutional authority and support for § 33.11, Fla. Stat., F.S.A., (which provided for appeals from the civil court of record to the circuit court) had been withdrawn by § 6 (3) and § 5(3) of Article 5 of the Florida Constitution F.S.A. as amended and that therefore the district courts of appeal have jurisdiction of such appeals.
A similar question was considered, and an identical result reached upon appeals from juvenile courts, upon State v. J.K., a minor, Fla.App. 1958, 104 So.2d 113, by the District Court of Appeal of Florida, Second District, and by the District Court of Appeal of Florida, First District, upon In re C.E.S., Fla.App. 1958, 106 So.2d 610.
Each of the above cited cases determines that statutory provisions for appeals to the circuit court are made ineffective by § 6(3) and § 5(3) of Article 5 of the Florida Constitution as amended. They do not treat, however, the problem of the limited appeal period provided in these statutes.
In Placid York Co. v. Calvert Hotel Co., Fla.App. 1959, 109 So.2d 604, we held the provision of § 83.27, Fla. Stat., F.S.A., limiting the appeal period in removal of tenant proceedings to be effective, even though that portion of the statute providing for an appeal to the circuit court had been superseded. Cf. In re Campbell's Guardianship, Fla.App. 1959, 114 So.2d 352, and In re Evans, Fla.App. 1960, 116 So.2d 783.
For the reasons set forth in the cited cases we are compelled to hold that § 732.16, Fla. Stat., F.S.A., limits the time for the taking of appeals from the county judge's courts in probate matters to 30 days from the entry of the order appealed. Therefore the instant appeal is dismissed for it affirmatively appears from the portion of the record filed in this appeal that the appeal was untimely.
Appeal dismissed.
CARROLL, CHAS., J., concurs.
HORTON, C.J., dissents.
I dissent from the opinion and conclusion of my learned colleagues in this case.
The jurisdiction of the district courts of appeal, as delineated in amended Article V, Section 5, Subsection (3), is as follows:
"Appeals from trial courts in each appellate district, and from final orders or decrees of county judge's courts pertaining to probate matters or to estates and interests of minors and incompetents, may be taken to the court of appeal of such district, as a matter of right, from all final judgments or decrees except those from which appeals may be taken direct to the supreme court or to a circuit court."
Prior to the amendment of Article V, § 732.16, Fla. Stat., F.S.A., provided that any party aggrieved by an order or judgment of the county judge, finally determining his rights in any proceeding in the administration of an estate, could take an appeal to the circuit court within thirty days from the date on which the order or judgment appealed was filed in the office of the county judge. There followed the directions for perfecting the appeal.
Florida Appellate Rule 3.2 subd. b provides that appeals from final decisions, orders, judgments or decrees should be commenced within sixty days from the rendition of such decision, order or judgment, unless some other period of time for taking an appeal is specifically provided by statute or the rules. Rule 4.4, Florida Appellate Rules, provides:
"The Florida Appellate Rules relating to appeals shall apply to appeals from final orders or decrees of county judge's courts pertaining to probate matters or to estates and interests of minors and incompetents."
If, as it has been interpreted, the amendment of Article V vested jurisdiction to review final orders in probate matters, etc., in the district courts, and operated to divest the circuit courts of their prior statutory appellate jurisdiction, then I am unable to discern where, by statute or other device, the portions of § 732.16, providing for the time of taking an appeal to the circuit court (30 days) would survive the constitutional amendment of Article V and the applicable Florida Appellate Rules. I feel that the county judge's court is, in every sense of the word, a trial court, having original jurisdiction in all cases at law where the demand or value of property involved does not exceed $100 proceedings relating to forceable entry or unlawful detention of land, and jurisdiction of the settlement of estates of decedents, minors and incompetents.
In the absence of statutory authority, and under amended Article V of the Constitution, as well as the Florida Appellate Rules, I feel the motion to dismiss should have been denied.