J. B. SOUTHARD, ET AL., AS PARTNERS DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF SOUTHARD LUMBER COMPANY,
v.
J. W. JOHNSON
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The Florida Supreme Court denied a petition for rehearing, reaffirming its prior decision to affirm the lower court's judgment. The court emphasized that it is bound by the official record and cannot infer rulings that are not explicitly stated.
No, the absence of an explicit order means the motion is still pending. The court cannot indulge in assumptions or infer rulings not present in the record.
“By per curiam order we affirmed the judgment in this case on December 17 because the record failed to show any order of court overruling motion for new trial.”
Establishes the basis for the initial affirmance.
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Join FLexlaw to unlock all legal intelligenceThe Supreme Court initially affirmed the lower court's judgment because the record did not show an order overruling a motion for a new trial. The appe…
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By per curiam order we affirmed the judgment in this case on December 17 because the record failed to show any order of court overruling motion for new trial. Therefore, no error of court is made to appear.
On petition for rehearing it is contended that the record shows by implication that motion for new trial was denied by the Judge of the Circuit Court. This would require us to indulge in assumption, which we are not permitted. This Court is bound by the record and, for all the record shows, the motion for new trial is still pending undisposed .of by the Circuit Judge. Motion for new trial may be presented after judgment is entered. Therefore, the entry of *714judgment is not equivalent to an order overruling motion for a new trial.
Petition for rehearing denied.
Ellis, P. J., and Terrell and Buford, J. J., concur.
Whitfield, C. J., and Brown and Davis, J. J., concur in the opinion and judgment.
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Winn & Lovett Grocery Co. v. Luke, 156 Fla. 638 (Fla. 1945)…, 143 So. 159; Gilbert v. State, 148 Fla. 293, 4 So. (2nd) 330, and cases cited. Entry of judgment is not equivalent to an order over-ruling motion for new trial for the [*645] purpose of reviewing errors committed at the trial. Southard v. Johnson, 118 Fla. 713, 160 So. 2. But a motion for a new trial is not essential to a consideration and review of asserted errors, duly excepted to and assigned, which covers matters other than the sufficiency of the evidence to sustain the verdict. Holstun & Son vs. Emb…
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City OF Pompano Beach v. Edwards, 129 So. 2d 144 (Fla. 2d DCA 1961)…ver brought to the attention of the court, except in the bill of exceptions. “Because of the state of the record, we cannot say that reversible error has been made to appear.” (Emphasis added.) On denying rehearing in the Southard case reported at 118 Fla. 713, 160 So. 2, the Court stated: “ * * * [I]t is contended that the record shows by implication that motion for new trial was denied by the judge of the circuit court. This would require us to indulge in assumption which we are not permitted * ‡ ‡» A…