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Zecca v. Pecora

Florida Supreme Court

December 8, 1939

ZECCA
v.
PECORA.

Error to Circuit Court, Dade County; Paul D. Barns, Judge.

Suit between James Zecca and John Pecora. To review an adverse judgment, James Zecca brings error. On motion by defendant in error to strike the bill of exceptions.

Motion denied.

COUNSEL [141 Fla. 37]James Kytle Williams, of Miami, for plaintiff in error.

J. H. Mercer, of Miami, C. S. Robertson, of Coral Gables, and Murrell & Malone and Benjamin E. Carey, all of Miami, for defendant in error.

OPINION

WHITFIELD, Justice.

Defendant in error moves to strike the bill of exceptions on the ground that it was not presented to the trial Judge for authentication until after the expiration of the ninety days allowed by Rule 88.

Motion for new trial was denied July 11, 1939. Bill of exceptions was presented to, and signed by, the Judge October 30, 1939. The order of the Judge contains the following:

The 'defendant did on the 30th day of October A. D. 1939, present and propose

Page 465

this, his bill of exceptions, and requested the settling and signing of the same after due notice to the plaintiff, and the Court considering that the justice of the cause requires the settling of this bill of exceptions on this date, the same is hereby signed and settled.'

Amended Rule 88 of the Common Law Rules, adopted September 18, 1936, reported in 124 Fla. 886, is as follows:

'The bill of exceptions should be made up and signed or lodged in the office of the Clerk within 90 days after verdict or order on motion for new trial, unless by special order entered within such time (whether the term shall have expired or not) further time be allowed. In case such special order be made, it shall be entered in the minutes, [141 Fla. 38] and in making up the bill of exceptions the fact that such an order was made shall be mentioned therein, or shall otherwise appear in the record.'

The requirements of Rule 88 that 'the bill of exceptions should be made up and signed or lodged in the office of the Clerk' within stated times, are satisfied if the bill of exceptions is presented to the Judge for signing or duly presented in the office of the Clerk for filing, 'within 90 days after verdict or order on motion for new trial' or within the time limited by a special order of the Judge if such order is made 'within 90 days ...


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