WAYNE VERNON DEAN, MARTIN KAUFMAN AND ALBERT WRIGHT, AS TRUSTEES OF THE CHURCH OF THE BRETHREN, APPELLANTS,
v.
STATE ROAD DEPARTMENT OF FLORIDA, AN AGENCY OF THE STATE OF FLORIDA, APPELLEE
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In an eminent domain proceeding, the Church of the Brethren trustees appealed an order granting a new trial 44 days after entry. The court held that appeals from orders granting new trials in eminent domain cases must comply with the 30-day appeal period specified in the applicable statute governing final judgments in such proceedings, not a separate 60-day period.
The court held that the time for seeking review of an order granting a new trial cannot be more or less than the time provided by the applicable statute for seeking review of the final judgment in the cause. In eminent domain cases governed by a 30-day appeal period, appeals from orders granting new trials must also be filed within 30 days.
“Section 59.04, supra, merely created the right of review "to the proper appellate court" of an order not previously appealable as such. This enactment did not serve to expand or shorten the normal time for seeking appellate review in a given proceeding.”
Establishes that § 59.04 did not change the applicable appeal period, only made orders reviewable.
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Join FLexlaw to unlock all legal intelligenceThe appellants were defendants in an eminent domain proceeding brought by the State Road Department of Florida. After an adverse judgment, they filed …
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The appellants, aggrieved defendants in an eminent domain proceedings, filed their notice of appeal in this court seeking review of an order granting a new trial 44 days after the entry of said order. The appel-lee has filed a motion to dismiss the appeal, contending that same was untimely filed, as § 73.14, Fla.Stat., F.S.A. provides a 30-day time limit for seeking review of final judgments in eminent domain proceedings. The appellants contend that the appeal [being authorized by the provisions of § 59.04, Fla.Stat., F.S.A.], having been filed within 60 days of the entry of the order granting a new trial, was timely notwithstanding the 30-day limitation contained in § 73.14, Fla. Stat.
It appears that the motion to dismiss should be granted. The purpose of enactment of § 59.04, Fla.Stat, F.S.A.,1 and its predecessors was to permit an aggrieved party, at his option to seek review of an order granting a new trial by “prosecute an appeal to the proper appellate court” without awaiting final judgment; or he could abide the outcome of the new trial and then file, if an aggrieved party, an appeal from said final judgment and assign as error the entry of an order granting a new trial. Section 59.04, supra, merely created the right of review “to the proper appellate court” of an order not previously appealable as such. This enactment did not serve to expand or shorten the normal time for seeking appellate review in a given proceeding. In the instant case, § 73.14, Fla.Stat., F.S.A.,2 prescribes a 30-day appeal period, which statute has been construed by the Supreme Court of Florida in Edwards v. Miami Shores Village, Fla. 1947, 40 So.2d 360, as permitting a review of an order granting a new trial. There are many different appeal periods prescribed in the Florida Statutes, among which are: § 39.14(2), providing 10 days in juvenile matters; § 83.27, providing 2 days in landlord and tenant proceedings; § 924.09, providing 90 days in criminal matters; § 932.53, providing 30 days on appeals from Justice of the Peace courts. The appellants have shown us nothing to the contrary and it appears that it would be the better rule if the time for seeking appellate review was uniform in a given proceeding.
Therefore, we hold that the time for seeking review of an order granting a new trial [which is authorized by § 59.04, supra] cannot be more nor less than that provided by the applicable statute for seeking review of the final decision in the cause. In the instant case the applicable *869time for seeking review of the final judgment is 30 days. Therefore, the notice of appeal filed subsequently to said time was untimely and the motion to dismiss be and the same is hereby granted.
Motion to dismiss granted.
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Emory G. Rich v. Harper Neon Co., Inc., 147 So. 2d 174 (Fla. 2d DCA 1962)…tes to eminent domain, authorizes appeals to be taken within 30 days from final judgments entered in eminent domain proceedings. The Third District Court of Appeal discussed this statute in a recent case, Dean v. State Road Department, Fla.App.1962, 144 So. 2d 867, holding that an appeal from an order granting a new trial, filed 44 days after the entry of the order, was untimely and thus dismissing the appeal. The appellant argues that the factual situation in the instant appeal is different from the Dean ca…
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Dean v. State Rd. Dep't of Fla., 184 So. 2d 517 (Fla. 3d DCA 1966)…and against the Petitioner, the State Road Department of Florida, for which let execution issue.” Affirmed, in part, reversed in part and remanded. . See Dean v. State Road Department, Ma.1903, 156 So. 2d 649, which quashed our opinion reported at 144 So. 2d 867, and our opinion on remand, 165 So. 2d 257, for the history of this case. . See Ma.Stat.1961, § 74.01, F.S.A. . The judgment states: “(h) * * * this Court must follow HILLSBOROUGH COUNTY vs. MARY D. BENNETT here-inbefore mentioned and allow only…
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Dean v. State Rd. Dep't of Fla., 156 So. 2d 649 (Fla. 1963)…tion for a new trial in eminent domain proceedings is governed by Section 73.14, Florida Statutes, F.S.A., or by Section 59.08, Florida Statutes, F.S.A. The decision submitted for review is Dean et al. v. State Road Department of Florida, Fla.App., 144 So. 2d 867. The Road Department instituted eminent domain proceedings against Dean and others. After the verdict the Road Department filed a motion for a new trial. The motion was granted by the trial judge on June 11, 1962. On July 27, 1962, Dean and others…
Authorities Cited
- Edwards v. Miami Shores Vill., 40 So.2d 360 (Fla. 1949)