JAMES H. STEPHENS, PLAINTIFF IN ERROR,
v.
THOMAS P. BRADLEY, DEFENDANT IN ERROR
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The Florida Supreme Court addressed whether amendments to a trial court record made after a writ of error was issued must be accompanied by notice to opposing counsel. The court held that while notice is generally required for material amendments, it was not necessary in this trespass case because the omission of a defendant from the judgment was not material—the court would presume discontinuance as to that defendant.
The court held that amendments to a record may be made in the trial court after a case has been brought to the Supreme Court by appeal or writ of error. While notice to opposing counsel is generally required for material amendments, such notice was not necessary in this case because the omission of a defendant from the judgment was not material in a tort action where verdicts and judgments could be rendered against one or all defendants.
“after a case has been brought to this court by appeal or writ of error the record in the case may be amended in the court below”
Establishes the foundational principle that trial courts retain power to amend records during appellate proceedings
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Join FLexlaw to unlock all legal intelligenceAn action of trespass vi et armis was brought against three defendants (Stephens, Osteen, and Cox) in Taylor County Circuit Court. Osteen died during …
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The Chief-Justice delivered the opinion of the court:
An action of trespass vi ei armis was commenced .by defendant in error against plaintiff in error, Thomas Osteen and D. N. Cox, in the Circuit Court of Taylor county. Os-teen died during the pendency of the suit. The original record contained a judgment against Stephens, and was silent as to Cox. At the last term of this court, on application of counsel for defendant in error, a writ of certiorari was issued to the Clerk of the Circuit Court for said county, commanding him to send up a complete transcript of the record, and the case was continued. After the continuance, defendant in error, by his counsel, applied to the court below to amend the record, which was granted. The amendment showed that after the commencement of the suit that the suit was discontinued by nolle prosequi as to Cox. Counsel for plaintiff in error now moves to strike from the record the amendments aforesaid, because it ap pears that the amendments were made after writ of error sued out, and because no notice was given to plaintiff in error, or his counsel, of the intention of defendant in error to make such a motion.
As to the first ground we think the practice is well settled that after a case has been brought to this court by appeal or writ of error the record in the case may be amended in the court below. As to whether notice of motion of intention to apply to the court to amend the record is necessary or not, the authorities differ. We are of the opinion that when the amendment is material that such notice should be given to the opposing counsel. In the case at bar, the suit being in tort, and it being the rule that the jury might find a verdict and the court render a judgment against one or all or part only of the defendants, the fact that a verdict and judgment was only rendered against Stephens, was immaterial. In such a case the court would presume that the case had been discontinued as to the other defendants, or that the silence of the verdict and judgment as to part of them was a verdict in favor of the parties not ' mentioned.
We think that notice m this case was not necessary, and the motion is denied.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Crenshaw Bros. Produce Co., Inc. v. Harper, 142 Fla. 27 (Fla. 1940)…the Governor to recommend to the Legislature needful changes in matters of procedure. The filing of a supplemental transcript herein has been permitted upon a motion filed by plaintiff in error. [*41] Furthermore, it was held in Stephens v. Bradley, 23 Fla. 393, 2 So. 667, that an amendment mine pro tunc of the record of a case decided by the Circuit Court may be made by such court while the case is pending on appeal in this Court. In that case the Court also said: “In the case at bar, the suit being in t…
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Olive v. State, 34 Fla. 203 (Fla. 1894)
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Brown v. State, 29 Fla. 494 (Fla. 1892)
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