Caples v. Taliaferro, (1941)
Court: Supreme Court of Florida
Number:
Visitors: 10
Judges: BUFORD, J. (disqualified).
Attorneys: George Couper Gibbs, Attorney General, and Marvin C. McIntosh, Assistant Attorney General, and John F. Burket, for Appellants;
M.B. Wither and Wm. M. Taliaferro, for Appellees.
STATEMENT
The motion in the Sarasota County case contains the following:
"Motion To Vacate in Part and To Modify and Amend Order of Judgment of the Supreme Court of Florida.
"Appellees, E.P. Taliaferro, Wm. M. Taliaferro, and Stella M. Taliaferro, as Executors and Trustees under the last Will and Testament of T.C. Taliaferro, deceased, respectively move the Court to vacate in part that portion of the Order or Judgment entered herein September 24, 1940, and filed October 1, 1940, insofar as the same provides that the original opinion theretofore filed March 8, 1940, be reaffirmed on rehearing, and to amend and modify the said Order or Judgment rendered on rehearing so that the same shall provide that the decision or decree of the lower Court be affirmed, or so that the same shall provide that the decision or decree of the lower court should be reversed with appropriate directions.
"Grounds assigned on which this motion is predicated are:
"1. The Order or Judgment of reversal filed herein March 8, 1940, on the original hearing was and is ineffective, inoperative and invalid in the determination of this cause, and the disposition of said cause is entirely governed and controlled by such proper Order or Judgment on rehearing as should be now entered herein.
"2. The Order or Judgment of reversal filed herein October 1, 1940, predicated upon the opinions therein referred to, affirmatively shows on its face that certain of the Justices of the Court entertain different opinions as to the proper judgment to be entered herein and as to the proper disposition of the cause, that there has been no concurrence of a majority of the Court in a reversal without directions, and that if there is a concurrence of a majority of the Court for reversal, such concurrence is in the opinion of Circuit Judge Rowe which is for reversal with directions as therein expressly stated. Accordingly, the only proper judgment to be entered herein is one affirming the lower Court, in absence of a majority concurrence for reversal, or else one reversing the lower Court with appropriate directions in accordance with the opinion of Circuit Judge Rowe."
The motion in the Manatee County case contains the following:
"Motion To Vacate in Part and To Modify and Amend Order of Judgment of the Supreme Court of Florida.
"Appellees, E.P. Taliaferro, Wm. M. Taliaferro, and Stella M. Taliaferro, as Executors and Trustees under the Last will and Testament of T.C. Taliaferro, deceased, respectfully move the Court to vacate in part that portion of the Order or Judgment entered herein September 24, 1940, and filed October 1, 1940, insofar as the same provides that the original opinion theretofore filed March 8, 1940, be reaffirmed on rehearing and to amend and modify the said Order or Judgment rendered on rehearing so that the same
shall provide that the decision or decree of the lower court be affirmed.
"Grounds assigned on which this motion is predicated are:
"1. The Order of Judgment of reversal filed herein March 8, 1940, on the original hearing was and is ineffective, inoperative and invalid in the determination of this cause, and the disposition of said cause is entirely governed and controlled by such proper Order or Judgment on rehearing as should be now entered herein.
"2. The Order or Judgment of reversal entered herein September 24, 1940, affirmatively shows on its face that it was rendered by the Court sitting in a body, and that said Order or Judgment was and is predicated upon the fact that the members of the Court were equally divided in opinion as to the proper Order or Judgment to be entered, and that there was no prospect of a change in its personnel, and that as a result thereof there was no concurrence of a majority of the Court which is necessary to a decision when the Court is working in a body; and, the original Order or Judgment filed herein March 8, 1940, being ineffective, inoperative and invalid for the reasons involved in Ground 1 of this motion above set forth, the legal effect of such equal division is that the decision or decree of the lower court was thereby affirmed and the Order or Judgment of the Court filed herein on October 1, 1940, should have affirmed the Order or Judgment of the lower court, instead of its Judgment on original hearing, pursuant to such equal division, and the practice of this Court."
Filed: Feb. 11, 1941
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 124 On October 8, 1940, there was filed in each of the above cases a "motion to vacate in part and to modify and amend order or judgment of the Supreme Court of Florida." See statement. These two cases were on appeal submitted together as *Page 127 companion cases on briefs and oral arguments before the Chief Justice and three Justices — a majority of the Jus
Summary: [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 124 On October 8, 1940, there was filed in each of the above cases a "motion to vacate in part and to modify and amend order or judgment of the Supreme Court of Florida." See statement. These two cases were on appeal submitted together as *Page 127 companion cases on briefs and oral arguments before the Chief Justice and three Justices — a majority of the Just..
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On petition for rehearing it is brought to my attention that when this case was called for oral argument I announced in open Court my disqualification to participate in the disposition of the cause but, nevertheless, did participate in the disposition by concurring in the opinion prepared by Mr. Chief Justice TERRELL.
When that opinion came to my desk with the record filed here I overlooked the fact that I had participated as Attorney General of Florida in the negotiations between the Trustees of the Internal Improvement Fund of Florida and the purchaser for the purchase and conveyance of bottom lands involved in this litigation.
I now withdraw my concurrence in the opinion and judgment,supra.
Source: CourtListener
