LOTTIE SYKES DOWNING, APPELLANT,
v.
PRESTON BIRD AND CITY OF HOMESTEAD, APPELLEES
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On second appeal, the District Court of Appeal affirmed the trial court's final decree against appellant Downing, rejecting her petition for rehearing based on delay in entering the decree and lack of a reported record of the proceedings.
The court affirmed the denial of the petition for rehearing. The court held that without a record of the proceedings resulting in the final decree, it could not review and alter the decree, and that the appellant failed to demonstrate any error or abuse by the chancellor in denying the rehearing petition.
“Unfortunately for the appellant, with no record of the proceedings which resulted in the final decree which recites that it was rendered after the taking of testimony and evidence, this court is not authorized to review and alter same.”
Establishes that the court cannot review the merits of the final decree without a proper record of the proceedings.
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Join FLexlaw to unlock all legal intelligenceThis case had previously been appealed to the Florida Supreme Court, which reversed the original final decree in favor of appellees Bird and City of H…
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This is a second appeal in this case. The original final decree in favor of the appel-lees was reversed by the supreme court in a decision reported as Downing v. Bird, Fla.1958, 100 So.2d 57, and remanded for further proceedings. Thereafter, following amendments to the pleadings and issue being joined, a second final hearing was held before the chancellor which resulted in the entry of a final decree adverse to the appellant. Subsequent to the entry of the final decree, the appellant filed a petition for rehearing requesting that the court re-take all the testimony and evidence in the matter because of: first, the delay between the final hearing and the rendition of the final decree and, second, that the original proceedings resulting in the final decree had not been reported.
This appeal seeks review of the order denying the petition for rehearing and the final decree rendered. Unfortunately for the appellant, with no record of the proceedings which resulted in the final decree which recites that it was rendered after the taking of testimony and evidence, this court is not authorized to review and alter same. Hall v. Davis, Fla.App.1958, 106 So.2d 599; Insana v. Hasty, Fla.App.1959, 109 So.2d 791. As to the order deny ing the petition for rehearing, the appellant has failed to demonstrate any error on the part of the chancellor in the denial of this petition. First, the record fails to disclose any error or abuse on the part of the chancellor in delaying the actual entry of the final decree a considerable length of time subsequent to the final hearing. Second, the appropriate method for establishing the evidence before the chancellor at the final hearing was not to have a complete retrial of the merits [as the appellant sought by her petition for rehearing], but the record should have been established in accordance with the principles laid down in Potash v. Dry & Company, 8 Fla.Supp. 174, which procedure was cited with approval by this court in Moyer v. Moyer, Fla.App.1959, 114 So.2d 638.
Therefore, for the reasons above stated, the orders [review of which are sought by these proceedings] be and they are hereby affirmed.
Affirmed.
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The Travelers Ins. Co. v. Agric. Delivery Serv., 262 So. 2d 210 (Fla. 2d DCA 1972)…as not reported, (3) the trial testimony was essential to a fair review in the appellate Court, (4) the parties could not agree later on what the testimony was, and (5) the trial Judge could not remember. The cases of Downing v. Bird, Fla.App.1962, 145 So. 2d 559; Potash v. Dry & Company, 8 Fla.Supp. 174; and Bryant v. State, Fla.App.1967, 204 So. 2d 9, are of no additional help. Downing and Bryant, like Moyer, suggested as a device “to establish a record where the right of appeal would otherwise be lost” (b…
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Anne Grace Short v. Short, 162 So. 2d 538 (Fla. 3d DCA 1964)…v. Young, Fla.App.1962, 142 So. 2d 788. Once again, for the benefit of the bar, attention is called to the appropriate procedure to be used to-establish a record when no court reporter was present at the hearing. See: Downing v. Bird, Fla.App.1962, 145 So. 2d 559; Pottash v. Dry & Company, 8 Fla.Supp. 174. Therefore, without the benefit of the evidence upon which the chancellor rendered' his decision, we must accept his order as-correct and same is hereby affirmed, without prejudice to the appellant to appl…
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Harwell v. Wilder, 247 So. 2d 90 (Fla. 2d DCA 1971)…in part; reversed in part. HOBSON, Acting C. J., and MANN, J., concur. . The parties attempted to follow a recognized procedure to establish a record where, as here, there was no court reporter present. See, e. g., Downing v. Bird (Fla.App.1962), 145 So. 2d 559 and Moyer v. Moyer (Fla.App.1959), 114 So. 2d 638. . Section 78.01 et seq., F.S.A. . See, e. g., Florida Trust & Banking Co. v. Consolidated Title Co. (1923), 86 Fla. 317, 98 So. 915; Bryant v. Godfrey (Fla.1949), 40 So. 2d 833; and Butler v. Mira…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lottie Sykes Downing v. Bird, 100 So. 2d 57 (Fla. 1958)
- Hall v. Davis, 106 So. 2d 599 (Fla. 1st DCA 1958)
- Moyer v. Moyer, 114 So. 2d 638 (Fla. 3d DCA 1959)
- Insana v. Hasty, 109 So. 2d 791 (Fla. 2d DCA 1959)
- Pottash v. DRY & Co., 8 Fla. Supp. 174 (Dade Cty. Cir. Ct. 1956)