NEW YORK LIFE INSURANCE COMPANY, A CORPORATION, PETITIONER,
v.
CARLIE C. KURZ AND ESSIE G. KURZ, RESPONDENTS
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New York Life Insurance Company sought to dismiss a cross-petition for writ of certiorari filed by Essie G. Kurz in a Supreme Court review of a District Court of Appeal decision. The court held that cross-petitions are permissible in certiorari proceedings and that Kurz's cross-petition was timely filed under the applicable rules.
Cross-petitions are permissible in certiorari proceedings under Florida Appellate Rule 4.5, subdivision c(3), applied in pari materia to Rule 4.5, subdivision c(6). The cross-petition was timely filed within 20 days of service of the transcript and brief on opposing counsel.
“All of Rule 4.5, subd. c, Florida Appellate Rules, concerns certiorari and all of said rules must be read in pari materia.”
Establishes the interpretive principle that all certiorari provisions should be read together as a unified whole
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Join FLexlaw to unlock all legal intelligenceThe original petition for certiorari was filed December 22, 1964, to review a District Court of Appeal decision dated October 29, 1964, with rehearing…
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This cause has been heard upon the motion of the respondent to dismiss the cross-petition for writ of certiorari filed by the respondent Essie G. Kurz on the grounds, first: that Florida Appellate Rule 4.5, subd. c(3), 31 F.S.A. permitting under the conditions set forth therein the filing of cross-petitions is inapplicable to Rule 4.5, subd. c(6) relating to certiorari from decisions of the District Courts of Appeal to the Supreme Court and, second: that if a cross-petition is permissible, the same was not timely filed. All of Rule 4.5, subd. c, Florida Appellate Rules, concerns certiorari and all of said rules must be read in pari materia. We hold, therefore, as to the first ground, that Rule 4.5, subd. c(3) is applicable to certiorari to review decisions of the District Courts of Appeal under the provisions of Rule 4.5, subd. c(6).
The original petition for certiorari here was filed December 22, 1964 to review a decision of the District Court of Appeal dated October 29, 1964, rehearing denied November 24, 1964, 168 So.2d 564. Under *538F.A.R. 4.5, subd. c(3) the cross-petition was required to he filed within 20 days from the service of the documents therein described, but our inspection of the record reveals that, at petitioner’s request, an extension of time was given to file the “transcript of record and brief” and that said documents were actually filed here on January 14, 1965, having been served on opposing counsel, by mail (See F.A.R. 3.4, subd. b [3]) January 13th, 1965. Under the rules, then, the respondents had 20 days after January 16th, 1965 to file their cross-petition. Said cross-petition was filed February 4th, 1965, within said 20 day period, and was, therefore, timely filed.
The motion to dismiss is denied.
THOMAS, ROBERTS, CALDWELL and ERVIN, JJ., concur.
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Mover v. Edward E. Johnson & the Indus. Relations Comm'n, 281 So. 2d 306 (Fla. 1973)…rs only to acts which are required within a certain time after service or notice. The time limit we are here concerned with does not run from “service” or “notice”, it runs from date of mailing. Petitioners also cite New York Life Ins. Co. v. Kurz, 174 So. 2d 537 (Fla.1965), Dubin v. Dept. of Business Regulation, 252 So. 2d 290 (1st Fla.App.1971), and Martorano v. Fla. Industrial Commission, 160 So. 2d 744 (3d Fla.App.1963). These cases are also inapplicable because they did involve time limits which ran fro…
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Authorities Cited
- Essie G. Kurz v. NEW York Life Ins. Co., 168 So. 2d 564 (Fla. 1st DCA 1964)