Whitaker v. Jacksonville Expressway Authority
Whitaker v. Jacksonville Expressway Authority
Opinion of the Court
Appellant was defendant in an eminent domain proceeding instituted under Chapter 73 of the statutes, F.S.A. He has appealed from the final judgment entered in the cause.
The case is now before the court on appellee’s motion to dismiss the appeal. The record reveals that the judgment appealed was rendered by the trial court on October 31, 1960. The notice of appeal was filed in the Circuit Court of Duval County on December 22, 1960. Appellee contends that this court has no jurisdiction to consider the appeal because the notice thereof was not filed within 30 days from the rendition of the judgment sought to be reviewed as required by that section of the statute authorizing appeals from final judgments in eminent domain proceedings. The statute on which appellee relies provides as follows :
“Any person aggrieved by the final judgment may appeal to the supreme court, but no appeal shall be entered after thirty days from the rendition of the judgment, and such appeal shall in no case operate as a supersedeas where the petitioner has paid the amount of compensation into court as aforesaid, so as to prevent the petitioner’s appro*189 priation of the property pending the appeal. If, at any time after the appeal is taken, the defendant shall take out of the court the amount found to be due him, the appeal shall be dismissed in the supreme court upon the filing of a certificate by the clerk of the circuit court, stating that the defendant has taken out the compensation as aforesaid. Laws 1941, c. 20930, § 14.”1
It is apparent that the notice of appeal in this case was filed by appellant more than 30 days, but within 60 days, after the rendition of the judgment sought to be reviewed. If the statute relied upon by appel-lee is controlling, it obviously appears that the notice was not filed within 30 days from the rendition of the judgment as required by the statute. Failure to perfect an appeal within the time provided by law divests the appellate court of jurisdiction to hear the appeal, and requires that it be dismissed.
The prime question which we must decide is whether the cited section of the statute which requires that appeals from final judgments in eminent domain proceedings must be taken to the supreme court within 30 days from the rendition of the judgment sought to be reviewed is valid and controlling in this and all like cases. The statute in question was originally enacted by the legislature at a time when jurisdiction to review final judgments entered in eminent domain proceedings was vested exclusively in the Supreme Court of this state. It was for that reason that the statute very properly provided that appeals from final judgments in proceedings of this kind should be to the supreme court. By amended Article V, of the Constitution, adopted in 1956 and which became effective on July 1, 1957, the jurisdiction of the Supreme Court to review by direct appeal final judgments' entered in eminent domain proceedings was withdrawn except in those cases in which the judgment directly passes upon the validity of a state statute, a federal statute or treaty, or construes a controlling provision of the state or federal constitution.
In the Codomo case
In Wartman, In re Wartman’s Estate, 128 So.2d 600, the Supreme. Court had before it for consideration the correctness of a decision rendered by the Third District Court of Appeal. 118 So.2d 838. By its decision the District Court held that notices of appeal to review final orders or decrees of the county judge’s court in probate matters must be filed within thirty days from the rendition of the order sought to be reviewed. The notice of appeal in that case having been filed more than thirty days from the rendition of the order appealed, the appeal was accordingly dismissed.
In determining that the time for taking an appeal from a final judgment or decree rendered in probate matters was limited to thirty days, the District Court relied upon the section of the Probate Act which reads as follows:
"Time for appeal. — An appeal to the circuit court from an order or judgment of the county judge in a probate matter must be taken within thirty days from the date on which the order or judgment appealed was filed in the office of the county judge.”8
In its consideration of the District Court’s decision the Supreme Court directed attention to a separate section of the Probate Act dealing with appellate review of judgments and decrees entered in probate, and which provides a second appeal as a matter of right to the party aggrieved by the decision rendered in the circuit court sitting in its appellate capacity, which section is as follows:
“(1) An appeal from the circuit court to the supreme court shall be governed in all respects by the law and the rules regulating appeals in chancery, except as herein otherwise provided. Such an appeal shall be taken within sixty days from the filing in the office of the clerk of the circuit court of the order or judgment of the circuit court appealed.
“(2) After an appeal is taken, the clerk of the circuit court shall make up the record on the appeal to the supreme court from the original probate files in his custody, or from such portions as may be designated by the parties to the appeal, and he shall certify that such record is correct.
*191 “(3) The clerk of the circuit court shall retain the original probate file until he has made up and certified the transcript, whereupon he may immediately return such file to the county judge. If there is no supersedeas of the circuit court’s judgment, the mandate shall be delivered to the county judge at the expiration of the time limited for taking the appeal to the supreme court. As amended, Laws 1945, c. 22783, § 2; Laws 1945, c. 22847, § 4.”9
The Supreme Court directed attention to the fact that at the time the foregoing sections of the Probate Act were enacted by the Legislature, the Constitution then in effect vested in circuit courts supervision and appellate jurisdiction of matters arising before county judges pertaining to their probate jurisdiction.
The Wartman decision correctly pointed out that the Constitution which was in effect at the time the Probate Act was originally adopted was amended in 1956, by which amendment the jurisdiction of the circuit courts and the Supreme Court to review final judgments or orders entered by county judge’s courts pertaining to probate matters has been withdrawn,
Having held that the sections of the Probate Act which provide for appeals from probate orders to the circuit courts, and then to the Supreme Court, were void for the reason that those courts now have no constitutional jurisdiction to review such orders, the Supreme Court went further to consider the effect of its decision upon that provision of the Probate Act which limits the time for taking appeals to the circuit court to thirty days. The court held that to allow the thirty-day limitation of time within which appeals should be taken to remain alive, when all the remainder of the statute has lost its constitutional validity, would do serious damage to the court’s previous decisions on statutory interpretation as well as the plain intendments of amended Article V of the Constitution. It held that fragmentary invalidation of those sections of the Probate Act dealing with appeals which contain no severability or savings clause so as to uphold the portion of the statute containing the thirty-day provision is an unacceptable legal method of striking objectionable provisions, absent legislative intent in that direction. It therefore held that the entire five enumerated 'sections of the statute must fall, including the provision limiting
Having reached the foregoing decision the Supreme Court held that the time for taking appeals in probate matters is now controlled by that section of the statute, implemented by our Florida Appellate Rules, which provide that appeals shall be taken or filed within 60 days from the rendition of the order, decision, decree or judgment appealed from.
Reverting now to the question presented by appellee’s motion to dismiss the appeal, we find that the only statute specifically governing appeals from final judgments entered in eminent domain proceedings provides that such judgments may he reviewed by direct appeal only to the Supreme Court. F.S. Sec. 73.14, F.S.A. Does the fact that under the present Constitution appeals from judgments entered in eminent domain proceedings may no longer be reviewed by appeal to the Supreme Court invalidate the entire statute, or may it be held that the statute has been amended by implication through adoption of amended Article V of the Constitution vesting appellate review in district courts of appeal?
In the case of State v. J. K., a minor,
Our present rules of appellate practice provide that from their effective date they shall supersede all conflicting rules or statutes, and all statutes not superseded thereby and in conflict therewith shall remain in effect as rules promulgated by the Supreme Court.
Since the notice of appeal in this case was not filed within the thirty days limited by the statute, we hold that the appeal was untimely filed and appellee’s motion to dismiss is accordingly granted.
. F.S. Sec. 73.14, F.S.A.
. Article V, § 4(2), Florida Constitution, F.S.A.
. Article V, § 5(3), Florida Constitution.
. Codomo v. Shaw, Fla.1958, 99 So.2d 849.
. F.S. See. 475.35, F.S.A.
. Article V, § 11, Florida Constitution.
. Article V, § 6, Florida Constitution.
. F.S. Sec. 732.16(2), F.S.A.
. F.S. Sec. 732.19, F.S.A.
. Article V, § 11, Florida Constitution.
. Article V, § 5, Florida Constitution.
. Article V, §§ 4(2) and 6(3), Florida Constitution.
. Article V, § 5(3), Florida Constitution.
. F.S. Sec. 59.08, F.S.A.; Rule 3.2, subd. b, Florida Appellate Rules 31 F.S.A.; In re Estate of Wartman, Fla.1961, 128 So.2d 600.
. State of Florida v. J. K., Fla.App.1958, 104 So.2d 113.
. F.S. See. 39.14(1), F.S.A.
. In re C. E. S., Fla.App.1958, 106 So. 2d 610.
. In re Evans, Fla.App.1960, 116 So.2d 783.
. F.S. See. 39.14(2), F.S.A.
. Rule 1.4, F.A.R.
. Rule 3.2, subd. b, F.A.R.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.