MIAMI TRANSIT COMPANY, A FLORIDA CORPORATION, APPELLANT,
v.
WALTER M. FORD AND MABEL FORD, HIS WIFE, APPELLEES
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Miami Transit Company appeals a trial court judgment in a personal injury case, but the appeal is dismissed as untimely. The court holds that service of a motion for new trial does not toll the appeal deadline unless the motion is also filed with the court promptly thereafter, and here the motion was filed six days after service and fifteen days after verdict, exceeding the applicable filing deadline.
Service of a motion for new trial does not toll the appeal deadline unless the motion is filed with the court immediately thereafter. Because the motion was filed two days after the expiration of the Rule 2.8(b) deadline (as extended for legal holidays), it was not timely filed and therefore did not stay the running of appeal time. The appeal is dismissed as untimely.
“An examination of the rules applicable to this case discloses that (1) Rule 2.8(b), F.R.C.P., 31 F.S.A., provides that a motion for new trial shall be served not later than 10 days after the rendition of the verdict and, (2) Rule 1.4(d), F.R.C.P., 30 F.S.A., provides that '[a]ll original papers, copies of which are required to be served upon parties, shall be filed with the court either before service or immediately thereafter.'”
Establishes the dual procedural requirements for motions for new trial—timely service and immediate filing with the court
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Join FLexlaw to unlock all legal intelligenceA non-jury trial concluded with a verdict on April 25, 1962. Miami Transit Company served a motion for new trial on opposing counsel on May 4, 1962, b…
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The appellees have moved to dismiss this appeal, contending that the notice of appeal was untimely filed.
The record reveals that the case was tried non-jury and a verdict was rendered on April 25, 1962; a motion for new trial was served on opposing counsel on May 4, 1962, but was not filed until May 10, 1962; the notice of appeal was filed on July 12, 1962. It is the contention of the appellees that the appeal was untimely filed, being 72 days after the entry of the final judgment and, therefore, should be dismissed under the authority of State ex rel. Diamond Berk Insurance Agency v. Carroll, Fla.1958, 102 So.2d 129; Albert v. Carey, Fla.App.1960, 120 So.2d 189; F.A.R. 3.2(b), 31 F.S.A. The appellant contends that the “serving” of a motion for new trial within 10 days tolled the time for taking an appeal [Pilgrim v. Melvin, Fla.App., 141 So.2d 296; F.A.R. 1.3 and 3.2] and, therefore, the notice of appeal was timely as the motion for new trial was not denied until May 14, 1962.
An examination of the rules applicable to this case discloses that (1) Rule 2.8(b), F.R.C.P., 31 F.S.A., provides that a motion for new trial shall be served not later than 10 days after the rendition of the verdict and, (2) Rule 1.4(d), F.R.C.P., 30 F.S.A., provides that “[a] 11 original papers, copies of which are required to be served upon parties, shall be filed with the court either before service or immediately thereafter.”
In the instant case, the original motion for new trial was not filed until 6 days after the copy was served on opposing counsel and 15 days after the rendition of the verdict by the trial court. We hold that even though the motion for new trial was served within the 10-day period, it was not filed until 2 days after the expiration of the time *88provided by Rule 2.8(b), F.R.C.P., supra [as extended by Rule 1.6(a), F.R.C.P., because the last day was a legal holiday], and therefore did not constitute “immediate” filing “thereafter” under Rule 1.4(d), F.R.C.P., supra, and was not a "timely motion for new trial” which would stay the running of the appeal time. See: Ganzer v. Ganzer, Fla. 1956, 84 So.2d 591.
Appeal dismissed.
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Miami Transit Co. v. Ford, 155 So. 2d 360 (Fla. 1963)…that the motion for a new trial was not timely and was, therefore, ineffective to toll the running of the 60 day appeal period. It held that the notice of appeal was filed too late. The appeal was dismissed. Miami Transit Company v. Ford, Fla.App., 149 So. 2d 87. The petitioner Miami Transit, seeks review by certiorari with the contention that the decision of the District Court of Appeal, Third District, in the instant case collides with a decision of the District Court of Appeal, First District, in Crovel…
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Miami Transit Co. v. Ford, 155 So. 2d 363 (Fla. 3d DCA 1963)…[*364] PER CURIAM. Whereas, the judgment of this court was entered on January 29, 1963 (Fla.App., 149 So. 2d 87) dismissing this appeal from the Circuit Court of the Eleventh Judicial Circuit of Florida in and for Dade County, in the above styled cause; and Whereas, on review of this courts’ judgment, by certiorari, the Supreme Court of Florida, by its opini…
Authorities Cited
- State v. Honorable Charles A. Carroll, 102 So. 2d 129 (Fla. 1958)
- Ganzer v. Ganzer, 84 So. 2d 591 (Fla. 1956)
- Albert v. Helena Carey, 120 So. 2d 189 (Fla. 3d DCA 1960)
- Pilgrim v. Melvin, 141 So. 2d 296 (Fla. 1st DCA 1962)