JAKE LEIBOVIT, PLAINTIFF IN ERROR,
v.
R. GARFUNKEL, DEFENDANT IN ERROR
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In a replevin action, the trial judge became incapacitated before ruling on the defendant's motion for a new trial. The Florida Supreme Court held that a substitute judge had the authority and duty to rule on the pending motion, and reversed the entry of final judgment without such consideration.
A substitute judge has full jurisdiction and authority to rule on a pending motion for a new trial, including the duty to determine it under applicable law. The defendant did not waive or lose the right to have the motion considered merely because the original judge became incapacitated before ruling on it.
“That the defendant has a right, a most valuable right, to have his motion for a new trial considered and determined, cannot be questioned, provided only he has not waived or lost it by operation of law.”
Establishes the fundamental principle that a party's right to have a motion for new trial heard is a valuable right that cannot be lost without waiver or operation of law.
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Join FLexlaw to unlock all legal intelligenceLeibovit brought a replevin action against Garfunkel. A jury verdict was rendered in Garfunkel's favor on June 17, 1913. Within four days, Garfunkel f…
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Cockrell, J.
This is an action in replevin brought by Leibovit against Garfunkel. There was a verdict for Garfunkel rendered June 17, 1913. Within four days thereafter a motion for a new trial was filed and presented to the presiding judge, Hon. L. W. Bethel, who fixed the date for the hearing thereon for June 23, 1913. On the day before that date, Judge Bethel was stricken with paraly sis, from which, he never recovered. On February 10,1914, Judge James W. Perkins of the Seventh Circuit, was assigned by the Governor to preside over the Circuit Court for Monroe County, in lieu of Judge Bethel, who was incapacitated to sit by reason of his illness.
No judgment having been entered upon the verdict, Judge Perkins was asked to rule upon the motion for a new trial, and also to enter judgment upon the. verdict. He declined to entertain the former motion, and entered judgment final upon the verdict.
That the defendant has a right, a most valuable right, to have his motion for a new trial considered and determined, cannot be questioned, provided only he has not waived or lost it by operation of law. That he has been guilty of no laches is equally clear. The trial judge recognized the right to be heard upon the motion, and set the hearing for a day within the term not then adjourned.
It would require a definite statute to make us hold that the right had been lost under the circumstances, and we have no such legislative command.
Chapter 5403, Laws of 1905, relating to motions for new trials, permits the judge to enlarge the time within which such motions may be made and presented, but this motion was made without the need of such enlargement.
The motion was a matter pending before Judge Bethel, and as such became a matter to be determined or disposed of under Gen. Stats. Sec. 1481, by the judge substituted .for him by reason of his inability to act.
There may be encountered some difficulty in properly disposing of the-motion, but there is no lack of jurisdiction in the substituted judge, and it becomes under said section one of his “duties.”
Judgment reversed. Shackleford, O. J., and Taylor, Hocker and Whitfield, J. J., concur.
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