HELEN TOM, A/K/A SIU FUN KWONG TOM, APPELLANT,
v.
STATE OF FLORIDA EX REL. JOHNNY TOM, A/K/A JIN HON TOM, APPELLEE
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This case involves a jurisdictional defect in a habeas corpus appeal. The court dismissed the appeal because the notice of appeal was filed before the trial court's judgment was formally rendered, depriving the appellate court of jurisdiction despite the parties' subsequent stipulation acknowledging the procedural error.
The court lacks jurisdiction over the appeal because the notice was filed before the judgment was rendered. The court held that jurisdiction cannot be conferred by the parties' conduct or stipulation, even when both parties acknowledge the procedural error.
“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.”
Establishes the governing rule requiring appeals to be timely filed within 60 days of rendition of judgment
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Join FLexlaw to unlock all legal intelligenceHelen Tom filed a notice of appeal on December 11, 1961, one day before the circuit court judge signed the final order on December 12, 1961. The order…
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This is an appeal from an order entered in favor of the respondent-appellee in a habeas corpus proceeding.
Upon examining the record-on-appeal in the instant case, a question of this court’s jurisdiction became apparent — a question which was raised by neither party herein. Questions of jurisdiction, however, may be noticed by the appellate court ex mero motu. In re Estate of O’Neal, Fla. App.1962, 142 So.2d 315; Casey v. Smith, Fla.App.1961, 134 So.2d 846; Florio v. State ex rel. Epperson, Fla.App. 1960, 119 So.2d 305, 80 A.L.R.2d 1117.
The notice of appeal filed in the instant case is directed to an order or judgment of the circuit court which, according to the certificate of the clerk of that court, was filed for record on January 2, 1962, although the judge signed it on December 12, 1961. The notice of appeal bears the certificate of the clerk of the lower court indicating that it was filed and recorded in his office on December 11, 1961.
Then, on December 14, 1961, counsel for the parties filed with the clerk below the following stipulation:
“Comes now the Defendant, HELEN TOM, by and through her undersigned *227attorney, joined by C. Ray Smith, Attorney for JOHNNY TOM, and hereby stipulate and agree that the Judgment Appeal from the above styled cause was the final Order of this Court entered on December 12, 1961, in the above styled cause. That Defendant inadvertently filed the Notice of Appeal prematurely in that the Lower Court had indicated the terms of its judgment and that the Plaintiff’s attorney had, on the 11th day of December, 1961, supplied the Defendant’s attorney with a copy of the same; however, the Final Judgment was actually entered in the Lower Court on December 12, 1961.”
Rule 3.2 subd. b, Fla.App.Rules, 31 F.S.A., reads as follows:
“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 vital word “rendition” is defined in Rule 1.3, Fla.App.Rules, 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.”
In the case presently before us the notice of appeal was, unfortunately, filed prior to “rendition of the final decision, order, judgment or decree appealed from,” and cannot, therefore, confer jurisdiction upon this court. See State ex rel. Diamond Berk Ins. Agency, v. Carroll, Fla.1958, 102 So.2d 129, 131.
With regard to the stipulation set out above, it is sufficient to say that jurisdiction is not conferred by conduct of the parties. In re Estate of O’Neal, supra; and Spitzer v. Branning, 1938, 135 Fla. 49, 184 So. 770.
For the reasons stated, this appeal is dismissed ex mero motu.
KANNER and SMITH, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Bumby & Stimpson, Inc. v. Peninsula Utils. Corp., 179 So. 2d 414 (Fla. 3d DCA 1965)…ion of this court to review the order appealed. A notice of appeal filed prior to rendition of a final judgment or decree cannot confer jurisdiction upon the court. Shaw v. Hill, Fla.App.1959, 114 So. 2d 721; Tom v. State ex rel. Tom, Fla.App.1962, 143 So. 2d 226. Where an appeal is taken in violation of the rules so that it is not legally sufficient to confer jurisdiction of the subject matter upon the court, the appearance of the appellee cannot of itself give the court jurisdiction of the subject matter,…
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TOM v. State of Fla. ex rel. Johnny TOM, 153 So. 2d 334 (Fla. 2d DCA 1963)…November 2, 1961, filed his petition for Writ of Habeas Corpus. An order was entered in favor of the petitioner, and Helen Tom took an appeal to this Court. That appeal was dismissed for lack of jurisdiction. See Tom v. State ex rel. Tom, Fla. App., 143 So. 2d 226, decided July 6, 1962. On July 11, 1962, the North Carolina Court entered an order directing Helen Tom to have the children before it on July 17, 1962. Pursuant to that order, the Florida Circuit Court entered an order directing Helen Tom to comply…
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Flinchbaugh v. The Fla. Real Est. Comm'n, 148 So. 2d 535 (Fla. 2d DCA 1963)…The respondent Commission filed its brief apparently overlooking the fact that this court is without jurisdiction to grant such petition in this instance. Questions of jurisdiction may be noted ex mero motu. Tom v. State ex rel. Tom, Fla.App., 1962, 143 So. 2d 226. Rule 4.5(c) of the Florida Appellate Rules effective after midnight September 30, 1962, 31 F.S.A.1 requires an application for writ of certiorari to be filed with the court within 60 days from the rendition of the order sought to be reviewed. Rend…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Florio v. State of Fla. ex rel. A. L. Epperson, 119 So. 2d 305 (Fla. 2d DCA 1960)
- State v. Honorable Charles A. Carroll, 102 So. 2d 129 (Fla. 1958)
- Spitzer v. Briggs Branning, 135 Fla. 49 (Fla. 1938)
- In re Est. of John D. O'Neal v. Mrs. Y. W. O'Neal, 142 So. 2d 315 (Fla. 2d DCA 1962)
- Casey v. Archar B. Smith, 134 So. 2d 846 (Fla. 2d DCA 1961)