McNamee v. First National Bank , 27 Fla. Supp. 79 ( 1966 )

JAMES R. KNOTT, Circuit Judge.

This cause is before this court on appellant’s motion to remand the case to the trial court, the small claims court in Palm Beach County.

Appellant brought suit against appellee in the small claims court, and after suffering adverse final judgment on March 23, 1966, petitioned that court for reconsideration.

On May 26, 1966, the trial judge rendered an opinion which sets forth the status of the proceeding, reading in part as follows —

“This cause was heard by the court May 12, 1966, upon plaintiff’s petition for reconsideration of the court’s final judgment filed April 14, 1966, addressed to the judgment entered March 23, 1966.

“This writing by the court will be without effect, in that on May 23, 1966, the plaintiff filed his notice of appeal and this court has lost jurisdiction to enter an order on the plaintiff’s petition above referred to. However, the views expressed herein may well have brought the court to a different decision than the one arrived at March 23, 1966.

. . . This court would, if jurisdiction had not been lost, recede from the prior judgment ...”

As observed by the court in a somewhat similar instance in Southern Railway Co. v. Wood, Fla., 171 So.2d 614 — “. . . The ends of justice under the law dictate that an opportunity be afforded in the trial court to cure the error, if any, resulting under the circumstances.”

It appearing that the trial court in the present case would recede from its former judgment except for the technical loss of jurisdiction occasioned by the filing of notice of appeal, it is ordered that appellant’s motion to remand be, and the same is hereby granted; that this cause is remanded to the trial court for the purpose of considering and entering an order upon appellant’s petition for reconsideration, and that this court relinquishes jurisdiction of the cause for that purpose.