ALFRED F. LA JOIE, APPELLANT,
v.
GENERAL MOTORS ACCEPTANCE CORPORATION, A NEW YORK CORPORATION, APPELLEE
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A defendant in a replevin action sought to appeal a summary judgment against him, but filed his notice of appeal 89 days after the judgment was entered. The court dismissed the appeal for lack of jurisdiction because the notice of appeal was untimely—a motion for new trial does not toll the appeal period in law actions.
The notice of appeal was not timely filed and did not vest the appellate court with jurisdiction. A motion for new trial does not toll or stay the appeal period in law actions; the appeal period runs from the date of recording of the summary final judgment, and the notice of appeal must be filed within the time limitation prescribed by statute and court rules to acquire jurisdiction.
“A motion for a new trial or a petition for rehearing consequent upon summary final judgment is not authorized under any court rule or statute as a procedure to attack or review a summary final judgment in a law action. The filing of such motion or petition does not toll or stay the running of the time of the appeal period from the date of the recording of the summary final judgment.”
Establishes the core holding that a motion for new trial does not extend the appeal deadline in law actions
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Join FLexlaw to unlock all legal intelligenceLa Joie was defendant in a replevin action brought by General Motors Acceptance Corporation to recover a Cadillac automobile sold under conditional sa…
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The action about which this appeal is concerned is that of replevin for recovery of a Cadillac automobile which had been sold under a conditional sales contract. Both the appellant, who was defendant, and the appellee, who was the plaintiff in the court below, sought summary judgment.
On March 26, 1958, the trial court denied appellant’s motion for summary judgment but granted appellee’s motion. The court entered summary final judgment in appel-lee’s favor, ordered that appellee was entitled to possession of the automobile, and also ordered payment of costs. The judgment was entered and recorded on March 26, 1958. As a consequence to the court’s ruling on April 3, 1958, appellant filed a motion for new trial. On May 15, 1958, the court in a written opinion and order denied the motion. Notice of appeal was then filed on June 23, 1958, which was eighty-nine days after the recording of the summary final judgment. The notice of appeal was directed to this judgment and to the order denying the motion for new trial.
No mention of the respective positions assumed by the parties on the merits of the appeal need be made because of this court’s conclusion that it has not acquired jurisdiction of the cause.
This is an action at law. A motion for a new trial or a petition for rehearing consequent upon summary final judgment is not authorized under any court rule or statute as a procedure to attack or review a summary final judgment in a law action. The filing of such motion or petition does not toll or stay the running of the time of the appeal period from the date of the recording of the summary final judgment. The method of review of a summary final judgment is by direct appeal as provided by the statutes and court rules governing appeals from a final judgment in law actions. This court obtains its jurisdiction of the subject matter and the parties to an appeal upon the filing of the *499notice of appeal, as required, within the time limitation and in the manner prescribed by the statutes (F.S.A. § 59.01 et seq.) and Florida Appellate Rules, rule 3.2, 31 F.S.A. It is, therefore, unmistakably clear that the notice of appeal was not timely filed so as to vest this court with jurisdiction. See Weisberg v. Perl, Fla. 1954, 73 So.2d 56; and Counne v. Saffan, Fla.1956, 87 So.2d 586.
The appeal is dismissed ex mero motu.
SHANNON, J., and SMITH, FRANK A., Associate Judge, concur.
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Wagner v. Bieley, 263 So. 2d 1 (Fla. 1972)…, the pendency of such petitions could not and did not operate to toll the time for filing notice of appeal. See Weisberg v. Perl, 73 So. 2d 56 (Fla.1954); Counne v. Saffan, 87 So. 2d 586 (Fla.1956); La Joie v. General Motors Acceptance Corporation, 108 So. 2d 497 (Fla.App.2d, 1959); Albert v. Carey, 120 So. 2d 189 (Fla.App.3rd, 1960); and Aurremma v. B-Thrifty Super Market, Inc., 127 So. 2d 682 (Fla.App.3rd, 1961).1 Lajoie v. General Motors Acceptance Corporation, supra, is representative of the [*4] “pre-a…
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Home News Publ'g Co. v. U-M Publ'g, Inc., 246 So. 2d 117 (Fla. 1st DCA 1971)…een 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 been more properly sought by certiorari, this alone shall not be a ground for dismissal; but the notice of appeal and the record thereo…
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Albert v. Helena Carey, 120 So. 2d 189 (Fla. 3d DCA 1960)…the nature of a petition for rehearing after the entry of the summary judgment were without legal effect. Weisberg v. Perl, Fla.1954, 73 So. 2d 56; Counne v. Saffan, Fla.1956, 87 So. 2d 586; La Joie v. General Motors Acceptance Corp., Fla. App.1959, 108 So. 2d 497. Since such proceedings were without effect, they could not operate to extend the appeal period. The appeal must be dismissed. It is so ordered. HORTON, C. J., and PEARSON and CARROLL, CHAS., JJ., concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Counne v. Saffan, 87 So. 2d 586 (Fla. 1956)
- Weisberg v. Perl et ux., 73 So. 2d 56 (Fla. 1954)