State Ex Rel. Davis v. City of Clearwater , 108 Fla. 635 ( 1933 )

The Supreme Court acquires appellate jurisdiction of a cause by the due issuance of a writ of error by the Clerk of the Supreme Court or by the clerk of the lower court in cases where writs of error are applicable, or by the filing of an entry of appeal in the lower court in cases where an appeal is applicable. The duerecording of a writ of error or of an entry of appeal in the Circuit Court in civil causes, gives the Supreme Court jurisdiction of the defendants in error or of the appellees, who are duly made parties of the writ of error or entry of appeal. The Supreme Court loses its appellate jurisdiction and the trial court regains its jurisdiction of the cause by the filing of the mandate of the appellate court in the lower court (Brown v. State, 29 Fla. 494, 11 So. 2d 181; Merchants' Nat. Bank of Jacksonville v. Grunthal, 39 Fla. 388, 22 So. 2d 685; State, ex. rel., v. Robles, filed October 10, 1932); unless the mandate may be legally recalled. Lovett v. State, 29 Fla. 384,11 So. 2d 176, 16 L.R.A. 313; Chapman v. St. Stephen's P. E. Church, 105 Fla. 683, 138 So. 2d 630; 4 C. J. 208; 3 Cyc. 478. The mandate may be withheld by the appellate court. J. T. K. W. Ry. Co. v. Adams, 28 Fla. 631, 10 So. 2d 465, 14 L.R.A. 533.

Where on appeal or writ of error, the Supreme Court affirms or reverses a judgment, decree or order, such court does not lose jurisdiction of the cause until the mandate of the Supreme Court is duly remitted to, and received in the office of the clerk of the lower court. If a term of the Supreme Court expires after an appellate cause is adjudicated and before the mandate is duly transmitted to the lower court, the appellate court retains jurisdiction of the cause until its mandate therein is duly filed in the lower, court. Appellate causes in which the mandate of the Supreme Court has not been issued are among the causes continued into the next term by the general order of continuance made at the end of each term of the Supreme Court.

Mandates of the Supreme Court do not, except on special order, issue until the time for filing petitions for re-hearing under the rule has expired, and this is the rule where a term of the Court ends after the judgment or decree on appeal has been adjudicated and before the time for filing petitions for re-hearing in a cause has expired. The issue of mandates is not controlled by the beginning or the ending of a term of the appellate court unless otherwise so provided or ordered. The time allowed by the rule for filing petitions for re-hearing is not affected by the beginning or ending of a term of the appellate court unless so prescribed by law or ordered by the court in due course.

In this case the judgment on writ of error was on rehearing re-affirmed just before the end of a term of the appellate court. In view of matters presented in other pending similar cases, this Court, sua sponte, after the expiration of the term in which the judgment was re-affirmed, directed the Clerk not to issue the mandate in this cause until specially directed to do so. The withholding of the mandate retained jurisdiction of the cause until the mandate of this Court is duly transmitted to the lower court.