S. B. W. STEPHENS ET AL., APPELLANTS,
v.
MARY E. HALE, APPELLEE
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The Florida Supreme Court denied the appellee's motion to strike the bill of exceptions from the appellate transcript, despite procedural defects in how the bill was prepared and entered into the trial court record.
The motion to strike is denied. Although the bill of exceptions has procedural defects, the appellants should be permitted to cure them by obtaining an amendment nunc pro tunc of the trial court minutes within a reasonable time, rather than having the bill stricken outright.
“It is apparent from the bill of exceptions that an order extending the time for settling the bill was made, and that the bill was actually made up and signed within the time allowed”
Establishes that despite procedural defects, the substance of the appellate record shows the order was made and the bill properly prepared within the extended time
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Join FLexlaw to unlock all legal intelligenceThe bill of exceptions was not made and signed during the Circuit Court term in which the trial occurred, and no order extending the time for preparin…
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Raney, C. J.:
Appellee moves to strike the bill of exceptions from the transcript, the ground of the motion being: That the bill of exceptions was not made and signed during the term of the Circuit Court at which the trial was had, and no order extending the time for making- up and presenting the bill of exceptions was entered in the minutes of the court at such term. The bill was not made up and signed during the term, and there is no pretense that the order has ever been entered in the minutes, either at such term, or subsequently nunc pro tunc.
C. C.
C. L.
Rule 97; Temple vs. Florida Land & Im. Co., 23 Fla., 59, 1 South. Rep., 333. It is apparent from the bill of exceptions that an order extending the time for settling the bill was made, and that the bill was actually made up and signed within the time allowed, and, but for circumstances to be noticed, we should, as in the case cited, grant the motion subject the right of the appellants to move to reinstate the bill on having procured, within a reasonable time, an amendment nunc pro tunc of the minutes,, or record of the proceedings of the Circuit Court. The circumstances referred to are, that the certified copy of the entries appearing in the minutes of the Circuit Court, which is presented by the movant in support of his motion and was served on appellants’ counsel with the notice of such motion, and is not denied to be correct, not only shows by the absence of the order referred to that no such order has been entered on the'minutes, but it also shows that the motion for a new trial has-never been disposed of. If it was not disposed of, the case is not properly here on appeal, but remains in the trial court for a disposition of the motion, and the proper motion would be to dismiss the appeal.. It is apparent, however, from the bill of exceptions, which, is endorsed by counsel for all parties as having been agreed upon, that such motion was in fact denied. It seems then that both the appellee and the appellants, are much interested in having the minutes of the court amended so as to speak the truth. As the record stands, a motion to dismiss would be the only proper motion for the appellee to make; however delaying its effect would be on the final disposition of the cause in this court in case either of amendments nunc pro tunc, or a subsequent disposition of the motion for a new trial (if the same was not in fact disposed of), and the bringing of the cause here again by proper appellate procedure.
The motion is denied.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hainlin v. Budge, 56 Fla. 342 (Fla. 1908)…ext 784; Myrick v. Merritt, 21 Fla. 799; Temple v. Fla. Land & Immigration Co., 23 Fla. 59, 1 South. Rep. 333; Lewis v. Meginiss, 25 Fla. 589, 6 South. Rep. 169; McGee v. Ancrum, 33 Fla. 499, text 506, 15 South. Rep. 231, text 233; Stephens v. Hale, 33 Fla. 618, 15 South. Rep. 251; Pickett v. Bryan, 34 Fla. 38, text 42, 15 South. Rep. 681, text 682; Jacksonville St. Railroad Co. v. Walton, 42 Fla. 54, text 79, 28 South. Rep. 59, text 66; Walker v. Parry, 51 Fla. 344, 40 South. Rep. 69; Montgomery v. State,…
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Morton C. Nichols v. Walton, 82 Fla. 385 (Fla. 1921)…rder was in fact duly made by the judge in term time and was by inadvertence or otherwise omitted from the minutes of the court; in which case it could properly be [*387] entered nunc pro tunc. See Greeley v. Percival; 21 Fla. 428; Stephens v. Hale, 33 Fla. 618, 15 South. Rep. 251. In the absence of a contrary showing the presumption is that the judge made the nuric pro time order to effectuate an order actually and duly made by him, but which by mistake was omitted from the minutes of the Court. Motion…
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Atl. Coast Line R.R. Co. v. Mallard, 53 Fla. 515 (Fla. 1907)…is allowed.” Bardin v. L’Engle, 13 Fla. 571; Smith v. State, 20 Fla. 839; Webster v. Barnett, 17 Fla. 272; Potsdamer v. State, 17 Fla. 895; Bowden v. Wilson, 21 Fla. 165; Temple v. Fla. Land & I. Co., 23 Fla. 59, 1 South Rep. 333; Stephens v. Hale, 33 Fla. 618, 15 South. Rep. 251; Myrick v. Merritt, 21 Fla. 799; Jacksonville St. Ry. v. Walton, 42 Fla. 54, text 79, 28 South. Rep. 59, text. As was said in Bowden v. Wilson, 21 Fla. 165, text 171, “But it is clear, as argued at the bar, that Rule 97 as to the…1 / 2
Authorities Cited
- Simon J. Temple v. The Fla. Land & Immigr. Co., 23 Fla. 59 (Fla. 1887)