JAMES MCKELL
v.
JOHN S. JACKSON, ET UX.
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The Florida Supreme Court affirmed an order that set aside a final decree and granted a rehearing. The court found no clear abuse of discretion in the lower court's decision to grant the rehearing.
No, the court found no clear abuse of discretion or error of law in the granting of the rehearing.
“We can not say that it has been made to appear that there was a clear abuse of discretion or error of law in the granting of the rehearing and therefore the order should be affirmed on authority of the opinion and judgment in the case of Punta Gorda v. Charlotte Realty, etc., Co., 93 Fla. 253, 111 Sou. 631.”
This quote establishes the court's reasoning for affirming the lower court's decision, emphasizing the lack of demonstrated abuse of discretion.
A final decree was entered in a case. The defendants filed a timely motion for rehearing, which the Chancellor held under consideration for several mo…
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The appeal is from an order setting aside and vacating a final decree and granting a rehearing.
The record shows that motion for rehearing was filed and presented to the Chancellor in due time after entry of final decree. That the Chancellor held the matter under consideration -for several months and then granted the motion.
The petition for rehearing contained four grounds, as follows:
“1. That the bill does not state grounds for the establishment of a trust in any of the property described therein.
“2. That the testimony is entirely insufficient to establish any trust in the property set forth in said decree.
“3. That the bill does not pray a conveyance of the lot in question from the defendants to the complainant.
“4. That there is no predicate either in the pleading or in the testimony for the conveyance of the fee simple title in the lot in question to the complainant.”
*186We can not say that it has been made to appear that there was a clear abuse of discretion or error of law in the granting of the rehearing and therefore the order should be affirmed on authority of the opinion and judgment in the case of Punta Gorda v. Charlotte Realty, etc., Co., 93 Fla. 253, 111 Sou. 631. '
It is so ordered.
Affirmed.
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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Citator
Cited By (11 total)
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Cole v. Cole, 130 So. 2d 126 (Fla. 1st DCA 1961)…nclusions thereon will not be disturbed.” Phifer v. Phifer, 1936, 124 Fla. 223, 168 So. 9, 10. See also Baker v. Baker, 1927, 94 Fla. 1001, 114 So. 661; Welch v. Welch, 1933, 112 Fla. 590, 152 So. 173, and Stoneburg v. Stoneburg, 1935, 120 Fla. 188, 162 So. 334. In justifying this rule with the goal of the courts to ascertain the truth,, it is sometimes pointed out that in an equity-suit the chancellor, like a jury in an action at law, is the trier of the facts and as such has heard the testimony of the wi…
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Brooks v. Brooks, 100 So. 2d 145 (Fla. 1958)…by accepting payment of sums awarded her in the final decree for alimony and expenses, waived the right to appeal from the decree with respect to such awards. 27 C.J.S. Divorce § 284, at p. 1102. See also Stoneburg v. Stoneburg, 1935, 120 Fla. 188, 162 So. 334 and Larabee v. Larabee, 1935, 128 Neb. 560, 259 N.W. 520. It has been suggested that to adhere to such a rule in divorce proceedings would leave the wife destitute during the pendency of her appeal. Such, however, is not the case. The appellate cou…
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Cocalis v. Cocalis, 103 So. 2d 230 (Fla. 3d DCA 1958)…warded her in the first alimony decree. Appellant contends on this appeal that by accepting such benefits of the decree the wife was precluded from seeking a larger amount of alimony on a petition for rehearing. Stoneburg v. Stoneburg, 120 Fla. 188, 162 So. 334, and the concurring opinion of Justice Drew in Brooks v. Brooks, Fla.1958, 100 So. 2d 145, deal with the effect, on a right to appeal from an alimony award, of accepting the alimony pending the appeal. It is sufficient to say in disposition of this…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The Town of Punta Gorda v. Charlotte Realty Inv. Co., 93 Fla. 253 (Fla. 1927)