Florida Asphalt Block Paving Co. v. Davis , 97 Fla. 390 ( 1929 )

Motion was made in this case to strike the transcript of record from the files upon the theory that there was no bill of exceptions contained in the transcript of the record and that the purported bill of exceptions was presented and signed after the adjournment of the Court and without an order having been made extending the time beyond the adjournment of the Court in which a bill of exceptions could be made up and presented.

The record supplemented by a certificate from the Clerk of the Circuit Court of Hillsborough County shows that the judgment was entered at the Fall Term of the Circuit Court of Hillsborough County on the 29th day of March, 1927, and that the Court adjourned on the 2nd day of May, 1927. A motion for a new trial was pending when that term of the Court adjourned. That the Spring term of the Circuit Court of Hillsborough County convened on May 3rd, 1927, and adjourned October 31st, 1927. The motion for new trial was denied on the 11th day of May, 1927, and the bill of exceptions was presented and signed on the 8th day of June, 1927. Judgment did not become effective until the motion for new trial was denied and, therefore, without an order extending the time for the making up and presenting of a bill of exceptions, it was proper for the same to be made up and presented at any time during the term of the court at which the motion for new trial was denied. See Worrell v. Ford, 90 Fla. 571; 107 So. R. 183.

The motion to strike is denied.

This cause having heretofore been submitted to the Court upon the transcript of the record of the judgment herein, and briefs and argument of counsel for the respective parties, and the record having been seen and inspected, and the court being now advised of its judgment to be given in the premises, it is thereupon ordered by the Court that if within thirty days after the mandate of this Court is filed in the Circuit Court the plaintiff, Robert Lee Davis, shall enter a remittitur in the sum of $3,000.00 then the said judgment of the Circuit Court shall stand affirmed for the remainder of the amounts awarded in said judgment; otherwise, the said judgment shall be reversed for a new trial.

WHITFIELD, P. J., AND STRUM AND BUFORD, J. J., concur.

TERRELL, C. J., AND ELLIS, J., concur in the opinion and judgment.

BROWN, J., dissents.