WILLIAM D. MCRAE, PLAINTIFF IN ERROR,
v.
MATTIE F. PRESTON, DEFENDANT IN ERROR
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The Florida Supreme Court addressed a motion to strike a bill of exceptions, finding it was filed too late according to court rules. The court struck the motion but reserved the right to address the bill of exceptions at the final hearing.
The court held that the motion to strike could not be entertained because it was filed after the specified time limit. However, the court reserved the right to consider the validity of the bill of exceptions at the final hearing.
“Rule 4 of the rules of this court provides that all motions on behalf of a defendant in error to strike the record or any portion thereof must be prepared and a copy thereof served upon the opposite party or his attorney within ten days after the return day of the writ of error or appeal, and that; no such motion shall be made or entertained at any other time.”
This quote establishes the rule governing the timing of motions to strike.
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Join FLexlaw to unlock all legal intelligenceThe defendant in error filed a motion to strike the bill of exceptions from the record. This motion was filed after the ten-day period stipulated by R…
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Per Curiam.
— This cause came on for hearing upon a motion on behalf of the defendant in error to strike the bill of exceptions from' the transcript of record. Rule 4 of the rules of this court provides that all motions on behalf of a defendant in error to strike the record or any portion thereof must be prepared and a copy thereof served upon the opposite party or his attorney within ten days after the return day of the writ of error or appeal, and that; no such motion shall be made or entertained at any other time. The motion here made was prepared, and a copy thereof served on opposing counsel after the lapse' of the time limited by said rule for such motions, and, gwerned by such rule, the court cannot, therefore, entertain the motion as made. Said motion is, therefore, hereby stricken from the docket, but without prejudice to the right of the court at the final hearing' of the cause to decline to consider the bill of exceptions therein, if, upon consideration, it be then found that such bill was signed and certified by the trial judge at a time when he had no authority to so certify same. It is further ordered that the defendant in error be allowed twenty days from the 15th day of July, 1907, within which to file his briefs in said cause.
All concur.