Opinion
May 9, 1952. Rehearing Denied June 3, 1952.
Appeal from the Circuit Court for Broward County, George W. Tedder, J.
Ellis Spencer, Hollywood, Brown, Dean Hill and Walton, Hubbard, Schroeder, Lantaff Atkins, all of Miami, for appellants.
Charles Danton, Miami Beach, and Fleming, O'Bryan Fleming, Fort Lauderdale, for appellee.
This is a suit for personal injuries growing out of an accident which occurred in the City of Hollywood on the night of January 10, 1951.
The automobile in question was owned by Ralph B. Springer, from whom it had been rented, and was being driven by Knowles. The complaint, as amended, was in the usual form and was against Knowles, the driver, and Florence A. Springer, as Administratrix of the Estate of Ralph B. Springer, deceased. The appellants denied the negligence alleged and pleaded contributory negligence on the part of the plaintiff.
The case was tried before a jury and motions for an instructed verdict were filed by the defendants, at the close of the plaintiff's case, and also after all of the evidence was in and the case was ready for the jury. The trial Judge denied both motions. The trial resulted in a verdict for the plaintiff in the sum of $75,000 on April 19, 1951. On April 24, 1951, a Sunday having intervened, the Court extended the time to file and present a motion for new trial through May 4, 1951. After some discussion at that time with the trial Judge by attorneys for all parties in order to fix a convenient date to hear the motion for a new trial, it was decided and the Judge agreed that the motions, when filed, would be heard at 10:30 A.M. on May 11, 1951. The motions for new trial were presented to and endorsed by the trial Judge on May 4, 1951, with the following notation:
"Filed and presented May 4, 1951."
A copy of each of the motions was served upon the attorneys for the appellee on the same date, May 4, 1951.
On May 4, 1951, a formal notice "of the time and place that the same will be heard" was served upon the attorneys for the appellee and said notice contained the following language:
"You Will Please Take Notice that the Original and Supplemental Motion to Set Aside the Verdict and for a New Trial of the Defendants * * * will be called up for Hearing before the Hon. George W. Tedder, one of the Judges of the above-styled court, in his Chambers at Fort Lauderdale, Florida at 10:30 a.m., on Friday, May 11, 1951."
This notice was filed in the Clerk's office on May 8, 1951, which contained the certificate of counsel that it had been served upon the attorneys for the appellee.
A motion to strike the original motion and supplemental motion to set aside the verdict and grant a new trial was filed by the appellee on the ground that no copy of either of said motions "to be presented to the Judge was served on the plaintiff or her attorneys with a three-days notice of the time and place that the said motions would be presented and heard as required by Section 54.24, F.S.A., and Rule 41 of Common Law Rules."
On the 17th of May, 1951, the Circuit Judge made the following order:
"This Cause coming on this date to be heard on the plaintiff's Motion to Strike the defendants' Motion to set Aside the Verdict and for a New Trial and the defendants' Supplemental Motion to Set Aside the Verdict and for a New Trial, and the Court having considered plaintiff's Motion to Strike both of said Motions, having heard argument of counsel for the respective parties and being fully advised in the premises, the Court finds that the defendants did not comply with Section 54.24 F.S.A. and Rule 41 of the Florida Common Law Rules in serving a copy of each of the said Motions on the plaintiff or her attorneys with a three (3) days' Notice of time and place of presenting same within the time allowed by the Order of the Court entered on April 24, 1951, for the filing and presentation of such Motions, it is thereupon,
"Ordered And Adjudged that the Plaintiff's Motion to Strike the Defendants' Motion to Set Aside the Verdict and for a New Trial and Defendants' Supplemental Motion to Set Aside the Verdict and for a New Trial be and the same is hereby granted."
There seems to be considerable confusion about the difference between Section 54.24, F.S.A., and Rule 41 of the Florida Common Law Rules, 30 F.S.A., and the settling of this confusion will be determinative of the question presented.
The material portion of Section 54.24, F.S.A., is as follows:
"Such motions 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 making and presentation of such motions, not to exceed fifteen days from the rendition of the verdict. In all 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. Motions standing over from one term to another shall operate as a supersedeas only when so ordered by the court."
If Section 54.24 is still in full force and effect, then the case of Howland v. Cates, Fla., 43 So.2d 848, would be controlling and the order of the Circuit Judge in granting the motion to strike the motions to set aside the verdict and granting a new trial would be correct.
It is urged by the appellants that Section 54.24, F.S.A., was repealed by Chapter 26962, Laws of Florida 1951, and is now superseded by Rule 41 of the Florida Common Law Rules. The pertinent parts of Rule 41 are:
"(b) Such motions shall be made within 4 days after the rendition of the verdict but the trial judge, upon cause shown, may within such 4 days, by order extend the time for making and presentation of such motions, not to exceed 15 days from the rendition of the verdict.
"(c) The party calling the motion up for a ruling shall give his adversary 3 days' notice of the time and place that the same will be heard." (Italics supplied.)
It should be noted that there is material difference between Section 54.24 and the quoted sections of Rule 41 in that Section 54.24 requires "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." Subsection (c) of Rule 41 omits the word "presented" and simply requires 3 days' notice of the time and place that the motion will be "heard".
Section 1 of Chapter 26962, Laws of Florida 1951, provides:
"Section 1. Sections * * * 54.24 * * * Florida Statutes, which have been superseded by the existing new common law rules heretofore promulgated by the supreme court, pursuant to section 25.47, Florida Statutes, and effective January 1, 1950, are repealed."
Rule 41 became effective January 1, 1950, pursuant to Section 25.47, F.S.A., and was confirmed and validated as of that date by Chapter 26962, Laws of Florida, 1951.
Rule 41 was adopted by this Court in strict compliance with Section 25.47, F.S.A., and was made effective as of January 1, 1950, and superseded Section 54.24, F.S.A., and said Rule 41 is controlling in this case.
The procedure shown by the record in this case for the extension of time for filing motions to set aside the verdict and for new trial, the order made upon such motions, the serving of such motions upon the appellee and of notice of time and place that the same would be heard was in full compliance with Subsections (b) and (c) of Rule 41 of the Florida Common Law Rules, and the order striking the original motion and supplemental motion to set aside the verdict and for new trial was error.
In reaching this conclusion we do not pass upon the merits of the motion and supplemental motion above mentioned, but simply hold that it was error to strike such motions and that the same should be considered by the trial Judge and proper orders made upon said motions in the exercise of his discretion and judgment.
Having reached this conclusion it will be unnecessary to consider the other assignments of error or questions presented.
Reversed.
SEBRING, C.J., and CHAPMAN and ROBERTS, JJ., concur.