CARLILE
v.
SPOFFORD
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The Florida Supreme Court held that a notice of appeal filed 61 days after entry of a decree, with the 60th day falling on Sunday, was timely under Florida appellate rules that exclude Sundays from time computations. The court resolved a conflict between statutory appeal deadlines and common law rules permitting extension when deadlines fall on Sundays.
The notice of appeal was timely filed. Although Section 59.08 establishes a 60-day appeal deadline, Chapter 59 is expressly designated as rules of court that may be modified by the Florida Supreme Court. The court's adopted Florida Common Law and Equity Rules expressly exclude Sundays and legal holidays from time period computations, thus modifying Section 59.08 and extending the deadline to the next business day.
“In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, * * *. The last day of the period so computed shall be counted unless it is a Sunday or a legal holiday, in which event the period shall run until the end of a next day which is neither a Sunday nor a holiday.”
The court's adopted rules expressly exclude Sundays from time period computations, thereby modifying the statutory appeal deadline.
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Join FLexlaw to unlock all legal intelligenceA notice of appeal was filed 61 days after entry of a decree, with the 60th day falling on Sunday. The question was whether the notice complied with t…
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ROBERTS, Chief Justice.
The Notice of Appeal in this case was filed 61 days after the date of the entry of the decree appealed from, the 60th day having fallen on Sunday. The question here is whether, in these circumstances, the Notice of Appeal was timely filed.
Section 59.08, Florida Statutes, F.S.A., provides that appeals shall be taken or filed “within sixty days from and after the entry of the order, decision, judgment, or decree appealed from.” And in Simmons v. Hanne, 50 Fla. 267, 39 So. 77, 79, this court held that the rule that “where the time within which, by an order or rule, judicial action is to be taken, expires on Sunday, the party is allowed the next day to do what is required”, Bacon v. State, 22 Fla. 46, could not be applied, when the act to 'be performed is in fulfillment of a statutory requirement. It was there held that, since the statute then in effect as to the time within which to file an appeal, did not expressly exclude Sunday from the computation, and since the intention of the Legislature to do so was not otherwise manifested, Sunday could not be excluded and the appeal was not timely filed.
But the provisions of our Chapter 59, Florida Statutes, F.S.A., relating to appellate procedure, are expressly required to be “considered as rules of court, and may be changed, amended, repealed, or superseded by rules adopted by the supreme court of this state”, Section 59.44. If, then, the appeal time specified by Section 59.08 is to be considered but a “rule of court,” the rule of Bacon v. State, supra, should apply, so that the instant appeal was timely filed.
Moreover, under its authority to change, amend, repeal or supersede the provisions of Chapter 59, this court has adopted the Florida Common Law, Vol. 30 F.S.A., and the Florida Equity Rules, Vol. 31 F.S.A., in both of which it is expressly provided that “In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, * * *. The last day of the period so computed shall 'be counted unless it is a Sunday or a legal holiday, in which event the period shall rim until the end of a next day which is neither a Sunday nor a holiday.” (The emphasis is supplied.) Common Law Rule 7(a) ; Equity Rule 32(a). Thus, this court had the right to and did modify Section 59.08 in the manner stated, and the Notice of Appeal in the instant case was timely filed.
This court has heretofore entered an order dismissing the appeal in this case. For the reasons above stated, the order dismissing the appeal is quashed, the appeal is reinstated, and the parties proceed therewith.
TERRELL, HOBSON, MATHEWS and DREW, JJ., concur. THOMAS and SEBRING, JJ., dissent.
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Wilson v. McCOY MFG. Co., Inc., 69 So. 2d 659 (Fla. 1954)…order * * * sought to be reviewed,” the time set by the rule for filing the petition should prevail. Precedent for applying the provision of the rule instead of " accepting the provision of the act appears in the cases of Carlile v. Spofford, Fla., 65 So. 2d 545, and South Atlantic S. S. Co. of Delaware v. Tutson, supra. From a practical standpoint the conclusion is justified because otherwise one time limitation would apply to compensation cases, a different rule to all other cases coming to this court by…
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Rubenstein v. Richard Fidlin Corp. & Richard Fidlin, 346 So. 2d 89 (Fla. 3d DCA 1977)…, or any other day that, pursuant to order of the court, the clerk’s office of the trial court is officially closed, the notice shall be filed on the next day which is not one of the aforementioned days. Fla.App. Rule 3.18. See: Carlile v. Spofford, 65 So. 2d 545 (Fla.1953); Finley v. State, 168 So. 2d 201 (Fla.2d DCA 1964). The order appealed from in this case is an interlocutory order denying the appellants’ motion to set aside a default judgment. This order was not required to be recorded by the clerk ex…
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Gerrald W. Finley v. State, 168 So. 2d 201 (Fla. 2d DCA 1964)…rule merely operates to compute time prescribed by rules, orders or applicable statutes. In civil cases the comparable question had been laid at rest even prior to the adoption of the 1954 Rules of Civil Procedure. In Carlile v. Spofford, Fla.1953, 65 So. 2d 545, Chief Justice Roberts considered a civil appeal filed on the 61st day, the 60th day having fallen on a Sunday. Although Fla.Stat. § 59.08, F.S.A. provides that civil appeals shall be filed within 60 days, the opinion noted that the provisions of sa…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Simmons v. Hanne, 50 Fla. 267 (Fla. 1905)
- Edmond P. Bacon v. State, 22 Fla. 46 (Fla. 1886)