L. P. ALLEN
v.
BREVARD COUNTY LOAN & MORTGAGE CO. CHARLES D. SMITH, GARNISHEE
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The Florida Supreme Court held that it lacked jurisdiction to consider a petition for rehearing and recall of mandate filed after the expiration of the term in which the original judgment was entered and after issuance of the mandate. The case illustrates strict procedural rules governing the timeliness of rehearing petitions and the court's loss of jurisdiction upon commencement of a new term.
The Court lacked jurisdiction to consider the petition for rehearing and recall of mandate because the Court lost all jurisdiction over the case when the new term began on January 8, 1935, with nothing of sufficient record to continue jurisdiction from the prior term, and because the mandate had already been issued and lodged in the court below, concluding the Court's jurisdiction for all purposes except recall of mandate, which was not requested during the June 1934 term.
“This Court, however, lost all jurisdiction over the case when the new term began January 8, 1935, with nothing of record having been sufficiently filed to continue the jurisdiction of the Court over the cause from the prior term into this term.”
Establishes the core holding that the Supreme Court lost jurisdiction upon commencement of the new term without sufficient filings to preserve jurisdiction from the prior term.
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Join FLexlaw to unlock all legal intelligenceThe Supreme Court filed an opinion and judgment on December 14, 1934, during the June 1934 term. The mandate was issued on December 31, 1934. A petiti…
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The opinion and judgment in this case were filed and entered December 14, 1934, during the June,, 1934, term of the Supreme Court. That term expired by limitation of statute January 7, 1935. On January 8, 1935, the January, 1935, term of the Court began. See Section 4690 C. G. L., 2961 R. G. S.
The mandate in this cause was required to be issued under (the amended rule upon the lapse of fifteen days after the opinion and judgment. See amended rule 25, as amended August 2, 1932, effective October 1, 1932. So the mandate went down December 31, 1934, during the June, 1934, term.
On January 5, 1935, a petition for rehearing was filed out of time without leave of court. To this petition a motion to strike was interposed by the opposite party and the petition was denied by reason of being stricken for filing out of time. No leave was sought during June, 1934, term of this Court which expired January 7, 1935, to have a petition for rehearing filed and considered out of time although the practice of the Court has been to grant additional time not exceeding fifteen days within which to file petitions for rehearing when the fifteen days allowed by the rule is deemed by the parties affected to be insufficient.
The present petition for recall of the mandate and for leave to file an extraordinary petition for rehearing was filed herein February 2, 1935, during the present term. This Court, however, lost all jurisdiction over the case when the new term began January 8, 1935, with nothing of record having been sufficiently filed to continue the jurisdiction of ' the Court over the cause from the prior term into this term. The petition for rehearing filed January 5, 1935, which was denied January 10, 1035, because not filed within time, was *448not sufficient to carry the case over from the last term because at the time that petition was filed the mandate had been issued and lodged in the court below and the time for filing petition for rehearing had expired thereby concluding the jurisdiction of this court over the cause for all purposes except recall of the mandate which was not requested during the June, 1934, term.
The extraordinary petition for rehearing and for recall of the mandate must therefore be denied for want of jurisdiction in the Supreme Court tO' consider it.
Wi-iitfield, C. J., and Ellis, Terrell, Brown, Buford, and Davis, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Olds v. Alvord, 139 Fla. 745 (Fla. 1939)…ines v. Hill, 106 Fla. 33, 143 So. 261; State v. City of Clearwater, 108 Fla. 635, 146 So. 836; McGregor v. Hannock, 114 Fla. 259, 154 So. 191; Hewitt v. International Shoe Co., 115 Fla. 508, 155 So. 725; Allen v. Broward County Loan & Mortgage Co., 118 Fla. 446, 159 So. 524. [*755] Per Curiam. — We give a chronology of the steps in the appeal leading up to the motion now under consideration, as follows: The opinion of the Court was filed March 29, 1938, affirming the decree of the lower court; April 11, 1…1 / 2
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Allen v. Brevard Cnty. Loan & Mortg. Co. Charles D. Smith, 118 Fla. 446 (Fla. 1935)
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Peter v. Seapine Corp., 678 So. 2d 508 (Fla. 1st DCA 1996)…1996 term ended, we lost jurisdiction to recall the mandate or to modify our original decision, despite the appellants’ having filed their motion to recall mandate during the first term. We disagree. See Allen v. Brevard County Loan & Mortgage Co., 118 Fla. 446, 159 So. 524 (1935); Hewitt v. International Shoe Co., 115 Fla. 508,155 So. 725 (1934). In Hewitt, the challenged opinion was rendered by the Florida Supreme Court on May 11, 1934. The court’s first 1934 term ended on June 11 and its second term be…
Authorities Cited
- Allen v. Brevard Cnty. Loan & Mortg. Co. Charles D. Smith, 118 Fla. 446 (Fla. 1935)
- Allen v. Brevard Cnty. Loan & Mortg. Co., 117 Fla. 640 (Fla. 1934)