L. A. HARRISON, APPELLANT,
v.
BAY SHORE DEVELOPMENT COMPANY, APPELLEE
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The Florida Supreme Court granted Bay Shore Development Company's motion to dismiss L. A. Harrison's appeal because the appeal was made returnable on Sunday, August 15, 1926, a day on which legal proceedings cannot occur. The Court held that "day certain" in the appeal statute means a legal day—one on which process can be served, parties can appear, and judgments can be entered.
The appeal must be dismissed because it was made returnable on Sunday, a dies non (non-judicial day) in Florida. The statute requiring appeals to be made returnable "on a day certain" means a legal day upon which process may be served, parties may appear, judgments may be entered, and executions may be issued—conditions that do not apply to Sunday.
“We construe that the language of the statute requiring writ of error (which statute also applies to appeals) to be made returnable to a day certain, means a legal day, that is, a day upon which process may be legally served, a day upon which parties may appear in response to process and upon which entries of judgment may be legally made and upon which execution may be legally issued.”
Establishes the Court's interpretation that 'day certain' in the statute requires a legal day, not Sunday
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Join FLexlaw to unlock all legal intelligenceL. A. Harrison filed an appeal in a case against Bay Shore Development Company. The appeal was made returnable on August 15, 1926, which fell on a Sun…
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Buford, J.
The appellee has filed a motion praying an order dismissing the appeal in this case upon the ground that the appeal was made returnable on the 15th day of August, 1926, which day was Sunday. Under the provisions of Section 2611, Revised General Statutes of Florida, service of process'is prohibited on Sunday, except, under certain conditions therein set forth.
The statute requires that appeals shall be made returnable on a day certain within certain, periods of time. It has been held by this court that Sunday in this State occupies the status of dies non. Barnes v. State, 68 Fla. 291, 67 South. Rep. 131. This Court is not open for business and the office of the Clerk is not open for the transaction of Court business on Sunday.
We construe that the language of the statute requiring writ of error (which statute also applies to appeals) to be made returnable to a day certain, means a legal day, that is, a day upon which process may be legally served, a day upon which parties may appear in response to process and upon which entries of judgment may be legally made and upon which execution may be legally issued. Sunday is not such a day. 37 CYC 587; Goole v. Spencer, 5 Paige Chancery Report (N. Y.) 540; McRee v. McRee, 34 Ala. 165; Peck v. Calvell, 16 Mich. 9. The due record of a writ of error or an appeal to the Supreme Court is statutory service of notice thereof upon the defendants in error or appellees, and the return day should be a day on which the parties may appear in response to the notice.
Under the common law the period of time included within the prohibition of judicial proceedings on Sunday is from sunrise to sunset and this rule has been adopted as the law in this State.
Every litigant has the right to insist that the litigation in which he is interested be carried forward in the orderly and legal manner. The argument of the appellant that the appeliee can gain nothing by reason of his motion to dismiss being granted cannot be considered as a reason why it should not be granted. The appellant has the choosing of the date upon which to make his appeal returnable; he exercised that right and having made it returnable to a date upon which it could not be legally made returnable the appellee has the legal right to insist that the appeal be declared void and the. same be dismissed; although, the only logical result of such procedure is to harass and annoy the appellant and to delay final adjudication of the cause on its merits.
The motion to dismiss is granted.
Whitfield and Terrell, J. J., concur. Ellis and Strum, J. J., concur in the opinion.
Brown, C. J., dissents.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Brooks v. Miami Bank & Tr. Co., 115 Fla. 141 (Fla. 1934)…returnable on Sunday, it requires what the law does not permit. If returnable on, Sunday, the notice is' legally ineffectual to subject the defendant in error or appellee to the jurisdiction of the court in the cause. Harrison v. Bay Shore Dev. Co., 92 Fla. 875, 111 So. 128; 60 C. J. 1139; 33 Cyc. 587. Where a writ of error or an entry of appeal is ineffectual to give the appellate court jurisdiction of the cause or the. parties, the writ of error or the entry of appeal may under proper conditions be awar…
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Harden v. Harden, 125 So. 2d 124 (Fla. 3d DCA 1960)…days are dies non juridices — non judicial days— and the offices of the courts are not open on these days. It appears that prior to § 47.46, Fla.Stat., F.S.A., this common-law rule was in effect in Florida. See Harrison v. Bay Shore Development Co., 92 Fla. 875, 111 So. 128; Brooks v. Miami Bank & Trust Co., 115 Fla. 141, 155 So. 157. This statute, however, contains a provision allowing service or execution on Sunday which is in derrogation of the comon law and should be strictly construed and complied wit…
Authorities Cited
- Barnes v. State, 68 Fla. 291 (Fla. 1914)