J. A. PILGRIM, APPELLANT,
v.
VERNON D. MELVIN AND CLARA L. SNELL MELVIN, FORMERLY CLARA L. SNELL, HUSBAND AND WIFE, APPELLEES
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The court held that the appeal was timely filed because the final decree was not considered 'rendered' until the motion for rehearing was denied.
Appellees moved to dismiss the appeal, arguing it was filed more than 60 days after the final decree. The appellant filed a notice of appeal after a d…
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The appellees have moved to dismiss this appeal on the ground that it was not timely filed.
The pertinent timetable is as follows: The final decree was entered by the Circuit Court on January 22, 1962, and the order denying the appellant’s motion for a rehearing was entered by that court on February 16, 1962. The date on which the appellant filed his notice of appeal from the final decree and the order denying the rehearing is uncertain but the appellees contend that the notice was filed on March 28, 1962, or 66 days after the final decree was entered, although it is established that a copy of the notice was served on the counsel for the appellees on March 27th and a copy filed in this court on March 29th.
Rule 3.2(b) and the last sentence in the definition of “rendition” in Rule 1.3 of the Florida Appellate Rules, 31 F.S.A. must be read “in pari materia.”
Rule 3.2(b) reads:
“b. Time. Appeals from final decisions, orders, judgments or decrees shall be commenced within 60 days from the rendition of the final decision, order, judgment or decree appealed from, unless some other period of time for taking an appeal is specifically provided by statute or these rules.”
The mentioned definition is as follows:
“ ‘Rendition’ of a judgment, decision, order or decree means that it has been reduced to writing, signed and made a matter of record, or if recording is not required then filed. A paper is deemed to be recorded when filed with the clerk and assigned a book and page number. Where there has been a timely and proper motion or petition for a new trial, rehearing or reconsideration by the lower court, the decision, judgment, order or decree shall not be deemed rendered until such motion or petition is disposed of.”
Applying these clear, unequivocal rules, we hold that the final decree was not “rendered” until February 16, 1962, and that the notice of appeal was filed approximately 42 days later, well within the period prescribed in the rule. Motion denied.
STURGIS and RAWLS, JJ., concur.
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Miami Transit Co. v. Ford, 149 So. 2d 87 (Fla. 3d DCA 1963)…, Fla.1958, 102 So. 2d 129; Albert v. Carey, Fla.App.1960, 120 So. 2d 189; F.A.R. 3.2(b), 31 F.S.A. The appellant contends that the “serving” of a motion for new trial within 10 days tolled the time for taking an appeal [Pilgrim v. Melvin, Fla.App., 141 So. 2d 296; F.A.R. 1.3 and 3.2] and, therefore, the notice of appeal was timely as the motion for new trial was not denied until May 14, 1962. An examination of the rules applicable to this case discloses that (1) Rule 2.8(b), F.R.C.P., 31 F.S.A., provides th…