GERALD LAUG AND KENNETH W. LONDON, APPELLANTS,
v.
JOHN MURPHY, APPELLEE
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The court held that it has jurisdiction despite late filing of assignments of error and directions to the clerk, as the notice of appeal was timely filed.
Defendants filed a timely notice of appeal but failed to file assignments of error and directions to the clerk within the prescribed time. The plainti…
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ON MOTION TO DISMISS
We are confronted here with procedural problems. The trial court entered final judgment on March 28. A timely motion for new trial was filed and denied by order entered May 17. Defendants filed their notice of appeal on May 19, but neglected to file assignments of error and directions to the clerk within the time provided by the rule. Appellee-plaintiff moved to dismiss the appeal on the grounds of these failures. In the interim appellant filed an amended notice of appeal. The original notice of appeal and the amended notice of appeal are identical in legal effect.
Since both the notice of appeal and the amended notice of appeal were filed within the time provided by the statutes for an appeal from the judgment we have jurisdiction. Our questions are procedural. In addition to its prime importance of establishing jurisdiction, the filing of the notice of appeal is the event which fixes all subsequent times for performance of acts required in the appellate process. Although an amended notice of appeal may be filed within the time permitted for appeal1 such an amended notice cannot be the means by which the appellant may alter the time for performance of acts relating to the appeal that have already been established. Appellants are therefore in default for failure to timely file their assignments of error and directions to the clerk. We approve appellants’ excuse for this default and we will enter an order extending the time for appellants to file their assignments of error and directions to the clerk. An order will be entered denying appellee’s motion to dismiss.
SMITH, C. J., and ANDREWS and WALDEN, JJ., concur.
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Archer-Daniels-Midland Co. v. A & P Bakery Supply & Equip. Co., 240 So. 2d 73 (Fla. 3d DCA 1970)…ce upon the proposition that an order granting a new trial is entitled to great weight upon appeal and will not be disturbed absent a showing of a clear abuse of discretion. See cases cited in Heggie v. Leonard Brothers Transfer, Inc., Fla.App.1966, 191 So. 2d 581. In the instant case the trial court denied the motion for continuance and then determined later that its exercise of discretion was against the established law upon the subject. The court determined that the initial ruling on the motion for continu…
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N. Beach Ass'n OF ST. Lucie Cnty., Inc. v. ST. Lucie Cnty., 706 So. 2d 62 (Fla. 4th DCA 1998)…that the adversary had been misled or prejudiced. Amendments should be liberally allowed under this rule, including pleadings in the lower tribunal, if it would not result in irremediable prejudice. This rule abrogated the dictum in Laug v. Murphy, 191 So. 2d 581 (Fla. 4th DCA 1966), cited by the trial court, to the effect that a notice of appeal cannot be amended after the expiration of the time allowed for appeal. It is not entirely uncommon for an appellant to request to file an amended brief to raise an…
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Rilling v. Dade Cnty., 35 Fla. Supp. 100 (Dade Cty. Cir. Ct. 1971)…d such rules do not authorize amendments to initial appellate pleadings after the time for filing the same. Thus the court is without authority to grant petitioners’ motion to amend to add the indispensable party. Cf. Lang v. Murphy, Fla. App. 1966, 191 So. 2d 581, and State v. Board of Zoning Adjustment of City of New Orleans, La. 1967, 197 So. 2d 691, 695. Also see Silver Star Citizens’ Committee v. City Council of Orlando, Fla. App. 1967, 194 So. 2d 681, wherein the court expressed doubt as to whether or n…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Seaboard AIR Line R.R. Co. v. Holt, 80 So. 2d 354 (Fla. 1955)
- The Mut. Life Ins. Co. v. Hartley, 92 Fla. 237 (Fla. 1926)