ELSIE PICOT
v.
FRANK W. PICOT
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The Florida Supreme Court dismissed an appeal where the notice of entry of appeal contained a defective return day date due to a typographical error (1936 instead of 1937). Although the error was clearly unintentional and no party was misled, the Court held that amendments to entries of appeal cannot be permitted after the statutory deadline for taking an appeal has expired, as doing so would exceed the appellate court's jurisdiction.
The appellate court cannot amend an entry of appeal after the statutory deadline for taking an appeal has expired. Once the time limit expires, the appellate court loses jurisdiction over the subject matter, and any amendment would constitute a new appellate process beyond the court's authority to issue. Therefore, the appeal must be dismissed despite the obvious typographical error and absence of actual prejudice.
“an amendment can not be allowed after the expiration of the time limited by law for taking appeals. This is so, because by the expiration of the time limited by law for taking an appeal in the first instance, the potential jurisdiction of the appellate court over the subject matter of the appeal terminates”
Establishes the core holding that amendments to entries of appeal are barred after statutory deadlines expire because the court loses jurisdiction.
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Join FLexlaw to unlock all legal intelligenceA final decree was entered on July 31, 1936. A notice of entry of appeal was filed on December 11, 1936, and recorded on December 12, 1936, specifying…
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Where a notice of entry of appeal in a chancery case has been filed under Section 4964 C. G. L., 3172 R. G. S., Section 4965 C. G. L, 3173 R. G. S., contemplates that a return day for such appeal shall be specified therein and that such return day shall be “more than” thirty days and not more than ninety days from the date of entry of appeal, else the entry of appeal is insufficient and the appeal will be dismissed.
Amendments to entries of appeal in the appellate court are permissible, but an amendment can not be allowed after *592the expiration of the time limited by law for taking appeals. This is so, because by the expiration of the time limited by law for taking an appeal in the first instance, the potential jurisdiction of the appellate court over the subject matter of the appeal terminates, and the appellate court is then no longer possessed of authority to permit an amendment that would be in the nature of a new appellate process beyond the competence of the Court to issue for the purpose of bringing the matter appealed and the parties to it, info the appellate court. See: Driggs v. Higgins, 19 Fla. 103; Lowe v. DeLaney, 54 Fla. 480, 44 Sou. Rep. 710; Brooks v. Miami Bank & Trust Co., 115 Fla. 141, 155 Sou. Rep. 157; Ayers v. Daniels, 67 Fla. 482, 65 Sou. Rep. 660; Mcjunkins v. Stevens, 88 Fla. 559, 102 Sou. Rep. 756; Spencer v. Travelers’ Ins. Co., 39 Fla. 677, 23 Sou. Rep. 442; Arnold v. Boyce, 97 Fla. 484; 121 Sou. Rep. 472, 122 Sou. Rep. 117; Ates v. Langley, 61 Fla. 504, 54 Sou. Rep. 264; Gadsden v. State, 76 Fla. 543, 80 Sou. Rep. 308; East Coast Lbr. Co. v. Walter Walten Co., 87 Fla. 326, 100 Sou. Rep. 738; Buck v. All Parties, Etc., 86 Fla. 86, 97 Sou. Rep. 313; Anderson v. State, 73 Fla. 86, 84 Sou. Rep. 6; DeBogery v. Hafleigh, 81 Fla. 631, 88 Sou. Rep. 470.
In this case the notice of entry of appeal was filed on December 11, 1936, to a final decree entered on July 31, 1936. The entry of appeal was recorded in the Chancery Order Book on December 12, 1936, and, as recorded, specifies the return day of the appeal as being March 2nd, 1936, an obviously impossible and consequently unauthorized, return day, made so, no doubt, through a typographical error which changed the date from March 2, 1937, the intended date, .to March 2, 1936, the erroneous date.
Considering that the fact of typographical error is established, and conceding also that no one has in fact been *593misled by the clerical misprision that has occurred, and that the transcript of the record has been duly prepared and filed in the Supreme Court before March 2, 1937, the intended return date, and a copy of the same timely served upon opposing counsel, the fact remains that the entry of appeal is defective and incapablé of now being amended, as we have many times before held, and this being true, the appellate court has no choice other than to follow its previous holdings and dismiss the appeal upon appellee’s motion calling attention to the defect. The cited case of Forcum v. Symmes, 101 Fla. 1266, 133 Sou. Rep. 88, relied upon by appellee is not inconsistent with' the previous holdings dealing with defects as to return days but is to be considered as being in line therewith when properly interpreted.
Motion to amend entry of appeal denied.
Motion to dismiss appeal granted.
Whitfield, Terrell, Brown, Buford and Davis, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State of Fla. ex rel. Russel Reichard & Marjorie Reichard v. The Honorable Sherman N. Smith, Jr., 177 So. 2d 340 (Fla. 1965)…demonstrated by the action of the court in consigning the appeal to limbo in event no amendment was made. I think the law is settled that a material change may not be made in a notice of appeal after expiration of the appeal period. Picot v. Picot, 127 Fla. 591, 173 So. 433. The notice of appeal must identify the judgment from which the appeal is taken and in the present situation definite identity of it could not have been known until the appellant exercised his choice — all after the period for appeal ha…
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J. A. Cantor Assocs., Inc. v. Woolin, 2 Fla. Supp. 141 (Dade Cty. Cir. Ct. 1952)…ppeal wholly insufficient to confer jurisdiction on the appellate court and which if so amended would change entirely the basis of the appeal? [*144] On the authority of Brooks v. Miami Bank & Trust Co. (Fla.), 156 So. 157 and Picot v. Picot (Fla.), 173 So. 433, the answer must be in the negative. In the Brooks case the appellant had made his appeal returnable on a Sunday and after the expiration of the time for taking an appeal sought to amend to change the return day to another day admittedly within the…
Authorities Cited (16 total)
- McJunkins v. Stevens, 88 Fla. 559 (Fla. 1925)
- Forcum v. Symmes, 133 So. 88 (Fla. 1931)
- Buck v. All Parties Claiming Interest in the Prop. Involved as Heirs, 86 Fla. 86 (Fla. 1923)
- Spencer v. The Travelers' Ins. Co., 39 Fla. 677 (Fla. 1897)
- Smith v. State, 87 Fla. 502 (Fla. 1924)
- Lowe v. DeLaney, 54 Fla. 480 (Fla. 1907)
- Anderson v. State, 73 Fla. 86 (Fla. 1917)
- Driggs v. Higgins, 19 Fla. 103 (Fla. 1882)
- Alda Ayers v. Linton Daniels, 67 Fla. 482 (Fla. 1914)
- Ates v. Langley, 61 Fla. 504 (Fla. 1911)