Dupree v. Elleman

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] A motion was filed June 8, 1939, by appellee, to dismiss this appeal which was taken from a judgment of the circuit court affirming on appeal an order of the Florida Industrial Commission, under the Florida Workmen's Compensation Laws of 1935 and 1937. The grounds of the motion to dismiss this appeal are:

"1. The judgment sought to be reviewed is not within the appellate jurisdiction vested in the Supreme Court of Florida by Section 5, Article V of the Constitution of Florida.

"2. The appeal entered is returnable to the Supreme Court of Florida to a day more than ninety days from the date of the judgment appealed from, and the statutory provision for the appeal to this Court (Section 27, Florida Workmen's Compensation Act as amended; Section 12, Chapter 18413, Laws of Florida, 1937, p. 1364), if valid, requires that such appeal shall be returnable to a day not more than ninety days from the date of the judgment."

On June 19, 1939, appellants filed the following:

"COME appellants herein by their undersigned solicitors and show unto the court that the following proceedings were had and taken in the lower court subsequent to the filing of the transcript of record in this cause:

"1. On May 31, 1939, appellants filed with the Clerk of the Circuit Court in and for Leon County, Florida, an amendment to appellants' notice of entry of appeal herein so as to make said appeal returnable to May 31, 1939, instead of June 6, 1939, the return date specified in the original notice of entry of appeal. Said amendment of notice of entry of appeal was filed with said Clerk on May 31, 1939, and recorded by him in Minute Book No. 20, at Page 366 in the records of his office.

"2. On May 31, 1939, appellants presented to the Hon. J.B. Johnson, one of the judges of the Circuit Court in and for the Second Judicial Circuit of Florida, a motion to amend original notice of entry of appeal herein so as to make the return date May 31, 1939, instead of June 6, 1939, as specified in the original notice of appeal. On said May 31, 1939, the Hon. J.B. Johnson rendered an order amending said notice of entry of appeal as requested in said motion. This motion and order were on May 31, 1939, filed with the clerk of said circuit court and recorded by him in Minute Book No. 20 at page 366 in the records of his office.

"Appellants further show unto the court that appellee has filed herein a motion to dismiss this appeal.

"Now, THEREFORE, appellants attach hereto certified copies of appellants' amendment to notice of entry of appeal, appellants' motion to amend notice of entry of appeal and Judge Johnson's order amending notice of entry of appeal, and respectfully move this court to consider these proceedings in this cause at the same time the court considers appellee's motion to dismiss this appeal."

"ORDER "This cause coming on to be heard on the foregoing motion and the court being fully advised in the premises, it is, therefore, in consideration thereof,

"ORDERED AND ADJUDGED that appellants' Notice of Entry of Appeal heretofore entered herein be and the same is hereby amended so as to make the return day therein May 31, 1939.

"DONE AND ORDERED at Tallahassee, Florida, this 31st day of May, A.D. 1939.

"J.B. JOHNSON, Circuit judge."

The record shows that the order or award of the Florida Industrial Commission was made November 21, 1938, and filed in the office of the commission the following day. An appeal to the circuit court was taken December 20, 1938, returnable before the circuit court January 23, 1939. The award appealed from was affirmed by the circuit court March 1, 1939. An appeal to this Court from such judgment of affirmance was taken March 11, 1939, and made returnable before the Supreme Court June 6, 1939, more than ninety days from the date of the judgment of the circuit court affirming the award made by the commission.

The controlling statute providing for appeals in this class of cases mandatorily requires such an appeal to be "taken within thirty days after the entry of the judgment of the circuit court," and that "the appeal shall be returnable from the * * * circuit court to the Supreme Court to a day more than thirty days and not more than ninety days from the date of the judgment * * * appealed from." The courts are given no authority to extend the return day of appeals as fixed by statute, and the judicial power conferred by the Constitution upon the courts does not by implication or intendment confer upon the courts authority to extend the return day of appeals fixed by statute. The appellate jurisdiction of the courts is conferred by the Constitution or by statutes not in conflict with the Constitution; but such jurisdiction must be invoked in particular cases in accordance with controlling statutes, or the appellate jurisdiction will not be acquired in particular cases. South Atlantic Steamship Co. v. Tutson, this day filed in this Court.

This Court had potential jurisdiction of this appeal under the Constitution and Chapter 18413, Acts of 1937 when properly invoked; but actual jurisdiction has not been acquired of the cause, since the return day of the appeal was more than ninety days from the date of the judgment of affirmance appealed from. See Simmons v. Hanne, 50 Fla. 267, 39 So. 77; State v. City of Coral Gables. 101 Fla. 237, 133 So. 892; Willey v. Hoggson,89 Fla. 446, 105 So. 126; Sumner Lumber Co. v. Mills, 64 Fla. 513, 60 So. 757.

For a more extended discussion of both the constitutional validity of the statute conferring appellate jurisdiction upon the Supreme Court in this class of cases, and the insufficiency of the appeal, as taken, to give this Court appellate jurisdiction of this case, see South Atlantic Steamship Company v. Tutson, and Weaver-Loughridge Lumber Company v. Coleman, this day filed in this Court.

The amendment to the entry of appeal attempted to be made in this case, as shown above, is ineffectual for the reason that the thirty days' time from the entry of the judgment in the circuit court for taking the appeal had expired before the attempt to amend was made.

The appeal is dismissed because it was made returnable to a day more than ninety days from the date of the judgment appealed from, in violation of the statute. Robinson Imp. Co. v. Jackson, 55 Fla. 657, 45 So. 987.

It is so ordered.

TERRELL, C. J., and BROWN, BUFORD, CHAPMAN and THOMAS, J. J., concur.

ON PETITION FOR REHEARING