Klein v. Werner, (1938)
Court: Supreme Court of Florida
Number:
Visitors: 5
Judges: TERRELL, J.
Attorneys: T.M. Shackleford, Jr., S.S. Sandford and J. Tom Watson, for Appellant;
W.F. Himes, Ralph C. Binford and W.H. Frecker, for Appellees.
Filed: Jul. 28, 1938
Latest Update: Mar. 02, 2020
Summary: [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 685 C.W. Klein of Tampa, Florida, executed his will November 9, 1933, and died on about July 11, 1936. He named Walter T. Werner and the Exchange National Bank of Tampa as executors of his estate but the Exchange National Bank renounced its right to and declined to qualify as such executor. His widow, Marie Klein, filed her caveat objecting to the probate of
Summary: [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 685 C.W. Klein of Tampa, Florida, executed his will November 9, 1933, and died on about July 11, 1936. He named Walter T. Werner and the Exchange National Bank of Tampa as executors of his estate but the Exchange National Bank renounced its right to and declined to qualify as such executor. His widow, Marie Klein, filed her caveat objecting to the probate of t..
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The Circuit Court acquired complete jurisdiction of the parties and of the res by the carrying out of the procedure set forth in the first paragraph of Section 53 of the Probate Act. I think the requirements of the second paragraph of that section are not jurisdictional in their nature, and are directory only. Thus strict compliance therewith may be waived by the parties in so far as the service of the ten days written notice of hearing is concerned, nor should the neglect of the Circuit Judge to set a date for hearing within sixty days, through no fault of appellant, deprive appellant of his right of appeal which is guaranteed by Art. V, Sec. 2, of the Constitution. It appears that there was a waiver of written notice by counsel in this case (see pp. 180-183 of transcript) on account of the illness of counsel who took the appeal to the Circuit Court. Motion for extension of time for hearing filed within the sixty-day period, and, as I take it, was impliedly granted by the subsequent action of the Circuit Judge. It seems to me that under the facts of this case the Circuit
Court had power to overlook the irregularities and go ahead and dispose of the appeal.
Source: CourtListener
