New York Life Insurance v. Kurz

174 So. 2d 537, 1965 Fla. LEXIS 3136

• Court: Supreme Court of Florida
• Decided: April 28, 1965
• Docket: No. 33945
• Status: Published

Opinion

DREW, Chief Justice.

This cause has been heard upon the motion of the respondent to dismiss the cross-petition for writ of certiorari filed by the respondent Essie G. Kurz on the grounds, first: that Florida Appellate Rule 4.5, subd. c(3), 31 F.S.A. permitting under the conditions set forth therein the filing of cross-petitions is inapplicable to Rule 4.5, subd. c(6) relating to certiorari from decisions of the District Courts of Appeal to the Supreme Court and, second: that if a cross-petition is permissible, the same was not timely filed. All of Rule 4.5, subd. c, Florida Appellate Rules, concerns certiorari and all of said rules must be read in pari materia. We hold, therefore, as to the first ground, that Rule 4.5, subd. c(3) is applicable to certiorari to review decisions of the District Courts of Appeal under the provisions of Rule 4.5, subd. c(6).

The original petition for certiorari here was filed December 22, 1964 to review a decision of the District Court of Appeal dated October 29, 1964, rehearing denied November 24, 1964, 168 So.2d 564. Under F.A.R. 4.5, subd. c(3) the cross-petition was required to he filed within 20 days from the service of the documents therein described, but our inspection of the record reveals that, at petitioner’s request, an extension of time was given to file the “transcript of record and brief” and that said documents were actually filed here on January 14, 1965, having been served on opposing counsel, by mail (See F.A.R. 3.4, subd. b [3]) January 13th, 1965. Under the rules, then, the respondents had 20 days after January 16th, 1965 to file their cross-petition. Said cross-petition was filed February 4th, 1965, within said 20 day period, and was, therefore, timely filed.

The motion to dismiss is denied.

THOMAS, ROBERTS, CALDWELL and ERVIN, JJ., concur.