IN RE ESTATE OF MINOLA M. LEE, DECEASED
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The Florida Supreme Court held that filing a petition for rehearing on a circuit court's judgment in a probate appeal does not toll the 60-day deadline for taking a further appeal to the Supreme Court, because no statute or rule authorizes such petitions in probate matters. The appeal was dismissed as untimely because it was filed 88 days after the circuit court's order.
Filing a petition for rehearing does not toll the appeal deadline in probate matters because no statute or rule authorizes such petitions. The 60-day appeal deadline applies from the filing of the circuit court's original judgment, and an appeal filed 88 days later is untimely and must be dismissed.
“The judgment of the circuit court on appeal shall be recorded by the clerk of the circuit court, * * *. The original final judgment of the circuit court shall serve as its mandate.”
Establishes that in probate appeals, the circuit court's judgment itself serves as the mandate, unlike appeals in other contexts.
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Join FLexlaw to unlock all legal intelligenceA petition for rehearing was filed on a circuit court judgment affirming a probate court decision. The appellant then attempted to appeal to the Flori…
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DREW, Chief Justice.
The sole question presented here is whether the filing of a petition for rehearing on a judgment of a circuit court affirming a judgment or appealable order of a probate court tolls the time within which an appeal may be taken in the same manner as the filing of a petition for rehearing in a chancery case or a motion for a new trial in a common law case. See Ganzer v. Ganzer, Fla.1956, 84 So. 2d 591, 592.
Sec. 732.16(8), Florida Statutes 1955, F.S.A. provides “The judgment of the circuit court on appeal shall be recorded by the clerk of the circuit court, * * *. The original final judgment of the circuit court shall serve as its mandate. * * *” Sec. 732.19, Florida Statutes 1955, F.S.A. authorizes an appeal from the circuit court and contains the express provision: “Such an appeal shall be taken within sixty days from the filing in the office of the clerk of the circuit court of the order or judgment of the circuit court appealed.”
We find no provision of the statute or rules which authorizes or recognizes a petition for rehearing in such instances. Unlike opinions and judgments of this court, the judgment of the circuit court acting as an appellate court in probate matters serves as the mandate.
The rationale of the opinion in Ganzer v. Ganzer, supra, is clearly applicable here. There we held that a motion for a new trial in a common law case and a petition for rehearing in a chancery case were clearly authorized by and provided for in the rules and statutes. Being a recognized pleading •required to be filed within a specified period of time, we held that the filing of either would “toll the time for appeal only when it is timely filed pursuant to a valid statute or rule.” (Emphasis ours.) There being no authority for a petition for rehearing in the circumstances of this case, such a petition does not toll the time for taking the appeal. Counne v. Saffan, Fla.1956, 87 So. 2d 586, 587. There we said “there is no provision in our rules or statutes for attacking a summary judgment in a law action by petition for rehearing or by a motion for a new trial. * * * If an appeal is instituted it must be from the summary final judgment itself.”
This appeal having been prosecuted 88 days subsequent to the entry of the order appealed from is hereby dismissed.
HOBSON, THORNAL and O’CON-NELL, JJ., concur.
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Wagner v. Bieley, 263 So. 2d 1 (Fla. 1972)…so ordered. ROBERTS, C. J., and ERVIN, CARLTON, ADKINS and BOYD, JJ„ concur. DEKLE, J., dissents with Opinion. . For other situations involving unauthorized postjudgment motions and their effect on timeliness of appeals, see In re Estate of Lee, 90 So. 2d 290 (Fla.1956); Marans v. Stang, 124 So. 2d 891 (Fla.App.3rd, 1960); Mathis v. Butler, 128 So. 2d 142 (Fla.App.2d 1961); and Pitts v. State, 225 So. 2d 352 (Fla.App.1st, 1969).…
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Home News Publ'g Co. v. U-M Publ'g, Inc., 246 So. 2d 117 (Fla. 1st DCA 1971)…r in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought.” . Rule 4.2(b), F.A.R. . Rule 1.3, Definitions — Rendition, F.A.R. . In Re Estate of Lee (Fla.1956), 90 So. 2d 290. . Albert v. Carey (Fla.App.1960), 120 So. 2d 189. . LaJoie v. General Motors Acceptance Corporation (Fla.App.1959), 108 So. 2d 497. . Rule 4.2(a), F.A.R. . F.S. § 59.45, F.S.A. “If an appeal be improvidently taken where the remedy might have b…
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In re the Est. of Margaret J. Crissey, 286 So. 2d 585 (Fla. 4th DCA 1973)…rel. Booth v. Byington, 168 So. 2d 164 (1st D.C.A.Fla.1964) aff’d [Fla.] 178 So. 2d 1. However, the filing of the petition or motion mill not toll the time for taking an appeal. Counne v. Saffan, 87 So. 2d 586 (Fla.1956). Compare In re Lee’s Estate, 90 So. 2d 290 (Fla.1956). The party who files the petition or motion therefore should obtain a ruling on it before the appeal period expires. If no ruling is obtained within the time for the taking of an appeal, a party should abandon the petition, file a notice…
Authorities Cited
- Counne v. Saffan, 87 So. 2d 586 (Fla. 1956)
- Ganzer v. Ganzer, 84 So. 2d 591 (Fla. 1956)