florida statutes 1959, volume 3 · index rules of civil procedure dismissal-continued voluntary,...

lNDEX · RULES OF CIVIL PROCEDURE

DEPOSITIONS-Continued · · · ':, -, Qr,g.~. ~x~min:atiori~Cont1nued

. -. - - - Failure to attend qr ~i.rve ~uqpoena, Rule "--~- :: ; ' - - 1.24. -. . . . ,_ . ' · · Forms, this inde x. · · · · · · · ·- , · · ·

Motion to terminate or limit, Rule 1.24. Notice, time and place, Rule 1.24. · Notice of filing, Rule 1.24. · . .. .. Orders, protection of parties and depo-

., . nen.ts, Rule 1.24. . ''ProC:e_dure; .Rule: 1.24'. · · . Questions··or answers; form errors and ir-

regularities, effect, Rule 1.26. . Recurd, oath, objections, cross-questions,

. Hule 1.24. ' ' · · · - · · -- ·c :1 ·'- ' Submission to ·witnesses, changes, signing,

Rule 1.24. . -Taking upon, Rule 1.21. · - · ·. · ···

Order suppressing, form, Rule 1.26, Form 3. .. Pen,ding appeal, Rule 1.22. •Perpetuation of testimony, Rule 1.22~'

Notice of application for order, form, Rule 1.22 Form 3. - · ·

· Order; f~rm, Rule L22, Form 4. _, . Petition, form, Rule 1.22; Form 2.

, :!;:~!"s,~?ns before Whom ta_ken; ·Ruie 1.23. rnsont persort confined-in, Rule ·1.21. Public:;ation, time deemed published, Rule-1.33. Questl~n_s or ,answers, form, errors and ittegu-

' , lar~tles, effect, Rule 1.26. Record of. examination; oath, objections, cross-1, 1 guestwns,_ Rule 1.24.

. .. Scope ·<if examination, Rule 1.21. ' ' Limitation, Rule 1.24.

Stipulation, . Oral examination, form, Rule 1.23, Form 1. Written interrogatories; form, Rule 1.23,

Form 2 . . , , . Subpoena,

-- .Form, Rule 1.34, Form 5. Party, Rule 1.24, Authors' Comment.

. ~ '.

: Subpoena for taking, Rule. 1.34. · Necessity, Rule 1.31, Authors' Comment.

' :· · SubstitUtion of patties, effect, Rule 1.21. Summary judgment O}:' , decree, motion for, .. . .Rule 1.36. . ·

. - Taking, errors and irregularities, effect, Rule . ' 126 .

T~r~in~tion . or limitation, motion in order, r Rule 1.24. ·

Time and place of taking oral examination no-' -: tice, Rule 1.24. · ·'

Use, Rules, 1.21, 1.22. Witnef:lses, written .mterrogatories procedure,

Rule 1.25. · ·· · · · ·· ' Written interrogatories, Rule '1.24.

Forms, this index. -, Objections, waiver, . Rule .1.26.

Taking upon, Rule 1.21.

DIRECTED VERDICT Motion for, Rule 2.7.

Denial, Rule 2.7. Effect, Rule 2.7. Form, Rule 2.7, Forms 1, 2. . Joinder with motion for new trial, ·Rule

2.7. ·Reservation of decision; Rule 2.7.

Order granting or denying, appeal, objection or exception, necessity, Rule 2.6.

DISCHARGE .. Affirmative defense, · Rule ·1.8.-

DISCHARGE IN BANKRUPTCY , Affirmative det~nse_, ·plea_di;l}g,..-,Rule _ 1.~ .. __ Forl;P', ~;!;t},~.f~-~.)j'orm 53_: _ · . . \·/

DISCOVERY ; . Answer, refusal to, Rule 1.31. . . ,

D!: 1 Co,pyiqg, ._9r photographing, ~.ule' 1.21, A4.~ors' Comment. . . ,

Costs, Rule 1.31, Authors' Coriuiierit. Depositions for, Rule 1.21. Execliltibn,· aid of, Rule 1,40; ~ ., .: : -~ : :_, Inspection, copying or photographing of docu-

. . ments, books, etc., Rule 1.28. ..<.: - ~ - • .t Interrogatories to parties, RUle 1.21, Authors'

Comment. - · < Objections, Rule 1.31, Authors' -Comment. Process of attachment in lieu of decree pro

-~ : ' ' corifesso, Rule 3.11. · - · ·c, Production of documents for inspection,~ Rule

· 1.21, Authors' Comment. - · - ·' Purpose, Rule 1.21, Authors' Comment. -.-.i-, Refusal to make, consequences;· Rule 1.31. Subpoena duces tecum, distinction, Rule 1.34,

Authors' Comment. · i Summary judgment or decree, mdtion for,

Rule 1.36. . Suppl~~enta.r:y proceeding, Rule 1.~0, • . Aui..

thorsL Comment: · ·

_:p~_l;;<;:RE:r~oN O_F COURT . _ _ . . · ' · · · Add1tlonaltrme to answer mterrogator1es, Rule

, 1.31, Authors' Comment. · · ·· 'Applications to postpone trial, Rule. 2.4,· Au

, _ thors' Comment. -.Consolidation ·of actions, Rule 1.20, Authors'

. . ,Comment. . :t ~- · Intervention; Rule 3.4, Authors' Comment.

Order, physical examination of party, Rule .-, :1.29, Authors' Comment. · · Receiver, appointment, Rule · 3.20, Authors'

Comment. · - 1

DISMISSAL Adjudication upon 'merits, Rule 1.35. : Affidavit, failure to produce documents; rform,

Rule 1.31, Form 9. · ' ' ' Answers, interrogatories, failure· to serve,i:R.ule

1.31. '. Case called for trial, Rule 2.3. ' Claim, second, with prejudice, Rule 1.35. . _ .

_ __ ,Close of plaintiff's evidence, motion, form, " "

1 ·· ' ' Rtil€!'1.35; Form 14. · ' ' Costs, Rule 1.35. Counterclaim or cross-claim, Rule 1.35.

, _Court, order of, effect, Rul_e 1.35. ·· ' ' 'Deceased party, Rule 1.19. ·

Deposition, failure to attend, Rule 1.31. Discovery, refusal to make, Rule 1.31. Failure to comply with order of court, order,

, ·•.!. • • • fotm., Rule 1.35, Form 13. · ' '· ., Failure to·· produce documents, motion, form,

. Rule 1.31, Form 8. ' · · F'orrhs; this index.

Involuntary, effect, Rule 1.35. Misjo~nde.r:, J

- · ·' 1Causes of action, Rule 3.7, Authors' Com-, .. ment. · '

· · 'Not ground for; Rul~ L18, Motion, · '' ' · .iFailute to --answer interrogatories; · form,

Rule 1.31, Form 6. Form, Rule 1.11, Form 1.

Order, failure to pro,duce documents, _ form', _ Rule 1.3~, Form 10 . ·-· · · :

Plaintiff, effect, Rule 1.35. · - ; '·'

1 -Refusal' to" answer intettogatories, Rule ; 1.31, Authors' Comment. i

INDEX RULES OF CIVIL PROCEDURE

DISMISSAL-Continued Voluntary, effect, Rule 1.35. With and without prejudice, Rule 1.35.

DISQUALIFICATION Masters, Rule 3.14. Officer or stenographer, depositions, Rule 1.26,

Authors' Comment.

DIVORCE Complaint, form, Rule 1.8, Forms 9-11.

DOCKETS Actions erroneously begun transfers, Rule 1.39. Common law, Rule 1.2. Entries, Rule 1.2. Equity, Rule 1.2. Judgment and execution, entries, Rule 2.14. Keeping and entering cases in, Rule 1.2. Special statutory proceedings, Rule 1.2. Trial

Disposition of case called for, Rule 2.3. Entry of case upon, Rule 2.2. New cases, entry upon, Rule 2.2. Sounded, when, Rule 2.2.

DOCUMENTARY EVIDENCE Filing and marking by clerk, Rule 2.5.

DOCUMENTS Action based upon, attaching as exhibit, plead

ings, Rule 1.10. Delivery, enforcement of final decree, Rule

3.15. Ejectment action, chain of title, Rule 2.11. Evidence as, filing and marking, Rule 2.5. Genuineness, request for admission, Rule 1.30.

Expenses and refusal, Rule 1.31. Identified, Rule 2.5, Authors' Comment. Inspection, copying, photographic, Rule 1.28. Masters,

Former documents used in proceedings before, Rule 3.14.

Production, Rule 3.14. Official. pleading, Rule 1.9. Pleading, form, Rule 1.9, Form 9. Proof, pre-trial procedure to avoid, Rule 1.16. Service, Rule 1.4. Subpoena for production, Rule 1.34.

DURESS Defense, imprisonment, form, Rule 1.8, Form

54.

EJECTMENT Action against tenant, landlord to t>e made

party, Rule 2.11. Change of title, Rule 2.11.

Test of sufficiency, Rule 2.11. Co-defendant, death, proceeding against sur

vivors, legal representative, or heirs and devisees, Rule 2.11.

Co-plaintiff, death, heirs and devisees substituted as plaintiff, Rule 2.11.

Defenses, limitation, Rule 2.11. Personal representative of party, death, suc

cessor in office, Rule 2.11. Tenant, action against, landlord to be made

party, Rule 2.11. Writs of possession in execution, joint or sev

eral, Rule 2.11.

ENDORSEMENT Attachment, acts of officer, Rule 2.10. Certificate of service by counsel, Rule 1.4. Date and hour of service of summons, Rule

1.3.

ENDORSEMENT-Continued Documentary evidence, identifying number or

symbol, Rule 2.5. Jury trial, demand for, upon pleading, Rule

2.1. '

ENLARGEMENT OF TIME See Time, this index.

ESTOPPEL Affirmative defense, pleading, Rule 1.8. By deed, form, Rule 1.8, Form 55.

EVIDENCE Adverse party, Rule 1.37. Amendment of pleadings to conform to, Rule

1.15. Depositions, Rule 1.21.

Admissibility, Rule 1.21. Objections, Rule 1.21.

Competency, relevancy or materiality, objection, effect, Rule 1.26.

De bene esse, Rule 1.32. Offer of part only, effect, Rule 1.21.

Directed verdict, motion for, Rule 2. 7. Discovery and production of documents and

thin~s for inspection, copying or photograpning, Rule 1.28.

Documentary, Filing and marking, Rule 2.5. Subpoena for production, Rule 1.34.

Exclusion, Discovery, refusal to make, Rule 1.31. Examiner, physical and mental, partles or

property, Rule 1.29. Record of, Rule 1.37.

Leading questions, Rule 1.37. Masters,

Filing with report, Rule 3.14. Hearing before, Rule 3.14.

Mental or physical examination, privilege, waiver, Rule 1.29.

Objection to admission, Rule 2.6, Authors' Comment.

Objections to questions propounded to witness, Rule 1.37.

Perpetuation of testimony, Rule 1.22. Privilege, waiver, physical or mental examina

tion, Rule 1.29. Reporting excluded evidence, Rule 1.37, Au

thors' Comment. Subpoena, production of documentary evi

dence, Rule 1.34. Summary judgment or decree, motion for,

Rule 1.36. Taking by deposition, Rule 3.12. Time for taking testimony, Rule 3.13.

EXAMINATION Depositions, scope, Rule 1.21. Documents and things for inspection, copying

or photographing, Rule 1.28. Masters,

Adjournment, Rule 3.14. Claimants, Rule 3.14.

Mental, parties, Rule 1.29. Oral, depositions, taking upon, Rule 1.21. Physical, adverse party, Rule 1.29. Property, Rule 1.29. Refusal to permit, consequences, Rule 1.31. Report of findings, physical and menta.l, Rule

1.29.

EXAMINER Hearing before, Rule 3.14. Taking of testimony, Rule 3.12.

8592

INDEX-RULES OF CIVIL PROCEDURE

EXCEPTIONS Abolished, Rule 2.6, Authors' Comment. Master's report, Rule 3.14.

Form, Rule 3.14, Form 10. Pleadings, abolished, Rule 1.14. Unnecessary, Rule 2.6.

EXECUTION Creditors' suit, form, Rule 1.40, Form 1. Discovery in aid of, Rule 1.40. Ejectment action, writ of, Rule 2.11. Enforcement of final decree, Rule 3.15. Issuance, restriction, Rule 2.13. Supplementary proceedings, Rule 1.40, Au

thors' Comment.

EXECUTORS AND AD"\1'INISTRATORS Ejectment, substitution for deceased co-plain

tiff or predecessor in office, Rule 2.11. Parties, Rule 1.17. Prosecution of action in name of, Rule 1.17.

EXHIBITS Consistency between pleadings and exhibits,

Rule 1.10, Authors' Comment.

FAILURE OF CONSIDERATION Affirmative defense, pleading, Rule 1.8.

FALSE IMPRISONMENT Complaint, form, Rule 1.8, Forms 12, 13.

FEES Persons served with subpoena, Rule 1.34.

FELLOW SERVANT Defense, form, Rule 1.8, Form 59. Injury by, affirmative defense, pleading, Rule

1.8.

FIERI FACIAS Ejectment action, Rule 2.11.

FILING Chain of title, statement, ejectment action,

Rule 2.11. Depositions,

Errors and irregularities, Rule 1.26. Publication, Rule 1.33. With court, Rule 1.24.

Documentary evidence, Rule 2.5. Inventorv, receivers, Rule 3.20. Jury trial, demand for, Rule 2.1. Master's report, Rule 3.14. Notice of dismissal, Rule 1.35. Original papers, copies of which are required

to be served on parties, Rule 1.4. Proofs in support of claim on default judg

ment, Rule 2.9. Traverse, g1rnishee's answer, Rule 2.12.

FINAL DECREE Enforcement, Rule 3.15.

FORECLOSURE Mechanic's lien, complaint, form, Rule 1.8,

Form 25. Mortgage, complaint, form, Rule 1.8, Form 30.

FOREIGN JUDGMENT Complaint, form, Rule 1.8, Form 14.

FORMS Account, receiver, Rule 3.20, Form 1. Actions at law, trial notice, Rule 2.2, Form 1.

FORMS-Continued Admissions,

Objections to requests, Rule 1.30, Form 3. Order sustaining objections, Rule 1.30,

Form 4. Request for, Rule 1.30, Form 1. Response to request, Rule 1.30, Form 2.

Affidavits, Attachment, Rule 2.10, Form 1. Dism1s.>ctl for f.1ilure to prosecute, Rule

1.35, Form 11. Failure to attend taking of deposition,

Rule 1.34, Form 6. Garnishment,

After judgment, Rule 2.12, Form 4. Before judgment, Rule 2.12, Form 1.

Leave to file supplemental complaint, Rule 1.15, Form 1.

Motion for, Attachment, failure to attend taking

deposition, Rule 1.34, Form 6. Default or dismissal, failure to pro

duce documents, Rule 1.31, Form 9.

Physical examination, Rule 1.29, Form 2.

Production of documents, Rule 1.28, Form 2.

Summary judgment, Rule 1.36, Form 5.

Suppress deposition, Rule 1.26, Form 2. Writ of assistance, Rule 3.17, Form 2.

Purchaser, Rule 3.18, Form 2. Allegations, restraining order and receiver,

Rule 3.19, Form 2. Amendment of answer, Rule 1.15, Form 2. Answer,

Amendment, Rule 1.15, Form 2. General denial, Rule 1.8, Form 47. Interrogatories to parties, Rule 1.27, Form

3. Appointment of guardian ad litem, motion,

Rule 1.17, Form 2. Attachment,

Affidavit. Rule 2.1 0. Form 1. Bond, Rule 2.10, Form 2.

Third party claim, Rule 2.10, Form 7. Finding for defendant. Rule 2.1"1. Form 10. Forthcoming bond, Rule 2.10, Form 4. Motion to dissolve, Rule 2.10, Form 8. Return, Rule ~.10, Form 5. Third party claim, Rule 2.10, Form 6.

Bond, Rule 2.10, Form 7. Traverse in support of motion, Rule 2.10,

Form 9. Writ, Rule 2.10, Form 3.

Bond, attachment, Rule 2.10, Form 2. Captions, Rule 1.7, Forms 1-4. Certiorari, petition, Rule 2.17, Form 1. Codefendant, notice of motion to be dropped,

Rule 1.18, Form 1. Complaints,

Account, Rule 1.8, Form 1. Assault and battery, Rule 1.8, Form 2. Bailment of auto, wrongful delivery, Rule

1.8, Form 3. Cancellation of insurance, false represen

tation, Rule 1.8, Form 4. Contract, Rule 1 .8, Form 5.

Vendor against purchaser, Rule 1.8, Form 6.

Conversion, Rule 1.8, Form 7. Divorce, Rule 1.8, Form 9.

Adultery, Rule 1.8, Form 10. Cruel and inhuman treatment, Rule

1.8, Form 11.

8503


FORMS-Continued Complaints-Cont.inued

FORMS-Continued

Dissolution of partnership, Rule 1.8, Form 8.

Ejectment, Rule 2.11, Forms 1, 2. False imprisonment, Rule 1.8, Forms 12,

13. Foreign judgment, Rule 1.8, Form 14.

· Goods sold and delivered, Rule 1.8, Form 15.

Host, gross negligence, Rule 1.8, Form 16. Injunction, Rule 3.19, Form 1. Insurance, death benefit, Rule 1.8, Form

18. ' Marine insurance, Rule 1.8, Form 19. Total disability benefits, Rule 1.8,

Form 20. Libel, Rule 1.8, Forms 21, 22. 1 Malicious prosecution, Rule 1.8, Form 23. Malpractice, Rule 1.8, Form 24. Mechanic's lien foreclosure, Rule 1.8, Form

25. Mistake, reformation of life policy, Rule

1.8, Form 26. Money,

Had and received, Rule 1.8, Form 27. Lent, Rule 1.8, Form 28. Paid by mistake, Rule 1.8, Form 29.

Mortgage foreclosure, Rule 1.8, Form 30. Negligence, Rule 1.8, Form 31.

Alternate defendants, Rule 1.8, Form 33.

Bailment, Rule 1.8, Form 34. . ., Glass in beverage, Rule 1.8, Forni 37. Joint suit of husband and wife, ,Rule

1.8, Form 32. ' Owner of premises, Rule 1.8, Forms

35, 36. Pedestrian walking along highway,

Rule 1.8, Form 38. Store patron, Rule 1.8, Form 39. ,

Nuisance, gases and fumes, injunction, Rule 1.8, Form 17.

Partition, Rule 1.8, Form 40. Promissory note, Rule 1.8, Form 41. Quiet title, Rule 1.8, Form 42. Quo warranto, Rule 2.20, Forms 1, 2. Real party in interest, assignee, Rule 1.17,

Form 1. Recission of contract, fraud, Rule 1.8, Form

43. Specific performance, conveyance of land,

Rule 1.8, Form 44. Subrogation, surety, misappropriations of

city treasurer, Rule 1.8, Form 45. Trespass, Rule 1.8, Form 46. . , 1

Consent, proposed guardian ad litem, Rule·1.17, . Forms 3, 5.

Consolidation of actions, Affidavit, Rule 1.20, Form 2. Notice of motion, Rule 1.20, Form 1. ' Order, Rule 1:20,- Form 3. ..

Continuance, motion, Rule 2.4, Form 1. Creditorlil' suit on execution, Rule 1.40, Form 1. Death of partner,

Suggestion by survivor, Rule 1.19, Form 6. Suggestion of death of one of parties,

Rule 1.19, Form 6. Default judgment,

Affidavit, Amount due, Rule 2.9, Form ·6. Failure to plead, Rule 2.9, Form 4. Military service of defendant, Rule

.. 2..9, ,Form 9. , Support of mot,ions to set aside, Rule

2.9, Form 11. · -·c .. . 3504

Default judgment-Continued Application, Rule 2.9, Forms 1, 5, 7. Docket entry, Rule 2.9, Form 3. Entry, Rule 2.9, Form 2. Motion, Rule 2.9, Form 8.

Set aside, Rule 2.9, Form 10. Defenses,

Accord and satisfaction, Rule 1.8, Form 48. Arbitration and award, Rule 1.8, Form 49. Assumption of risk, Rule 1.8, Form 50. Contract void by statute, Rule 1.8, Form

58. Contributory negligence,

Action against railroad, Rule 1.8, Form 52.

Personal injury, Rule 1.8, Form 51. Discharge in bankruptcy, Rule 1.8, Form

53. Duress, imprisonment, Rule 1.8, Form 54. Estoppel by deed, Rule 1.8, Form 55. Failure of consideration, Rule 1.8, Forni

56. ' Fellow servant, injury by, Rule 1.8, Form

59. Fraud, Rule 1.8, Form 57. Infancy, Rule 1.8, Form 67. Insanity, Rule 1.8, Form 68. Mistake, Rule 1.8, Form 66. Payment, Rule 1.8, Forms 61a, 61b. Release, Rule 1.8, Forms 62a, 62b. Res judicata, Rule 1.8, Form 63. Statute of frauds, Rule 1.8, Forms 64a 64b. Statute of limitations, Rule 1.8, Forn{ 65. Trade-mark, acquiescence in use, Rule 1.8,

Form 60. Deposition,

Certificate of non-attendance, Rule 1.34, Form 7.

Motion for leave. to take, R!..tle 1.21, Form 1.

Motion to suppress, Rule 1.26, Form 1. . Affidavit, Rule 1.26, Form 2. Order suppressing, Rule 1.26, Form 3.' Written interrogatories, Rule 1.25, Form 2.

Cross-interrogatories, Rule 1.25, Form 3.

Notice of motion, protective order, Rule 1.25, Form 4. ,

Notice of return and filing, Rule ''1.25, Form 7. ·

Notice of taking, Rule 1.25, Form 1. Objections, Rule 1.25, Form 5. Record and certificate of answers,

Rule 1.25, Form 6. · Deposition de bene esse, Rule 1.32, Form 2 .

Motion to strike parts, -Rule 1.32, Form 3. Motion to suppress, Rule 1.32, Form 4. Notice, Rule 1.32, Form 1.

Deposition on oral examination, Certificate of officer, return, ·several wit

nesses, Rule 1.24, Form 15. Motion for protective order, Rule 1.24;

.Form 6. · . . Notice, filing, Rule 1.24, Form 16. Notice of motion,. T

Protective order, Rule 1.24, Form 5. Terminate examination, Rule 1.241

Form 8. , Notice of taking, Ruie 1.24, Form 1~

Describing unknown deponents, Rtile . ·-· 1.24; Form 4.

Party, Rule L24, Form 2. · · , Person not a party, Rule 1:24, Form 3.


FORMS-Continued Deposition on oral examination-Continued

·Objection, . Disqualification of officer, Rule 1.24,

Form 12. Notice not reasonable, Rule 1.24, Form

10. Premature, Rule 1.24, Form 11.

Order denying leave, Rule 1.21, Form 3. Order granting leave, Rule 1.21, Form 2. Order limiting scope, Rule 1.24, Form 7. Order terminating examination, Rule 1.24,

Form 9. Record, stipulation waiving signature,

Rule 1.24, Form 14. Record and certificate, Rule 1.24, Form 13.

Dismissal, \ · Close of plaintiff's evidence, motion, Rule

1.35, Form 14. Failure to prosecute,

Affidavit, Rule 1.35, Form 11. Notice of motion, Rule 1.35, Form 12.

Motion, Rule 1.35, Form 4. Notice, by plaintiff, Rule 1.35, Form 1. Notice of motion, plaintiff, Rule 1.35,

Form 3. Order, failure to comply with order of

court, Rule 1.35, Form 13. Order allowing, Rule 1.35, Form 5.

Conditions, Rule 1.35, Forms 6-10. Stipulation, Rule 1.35, Form 2.

Draft report of master, notice, Rule 3.14, Form 7.

Ejectment, Complaint; Rule 2.11, Forms 1, 2. Writ of possession, Rule 2.11, Form 3.

Enlargement of time, Motions, Rule 1.6, Forms 1-3. Orders, Rule 1.6, Forms 5-7. Stipulation, pleading, Rule 1.6, Form 4.

Execution, creditors' suit, Rule 1.40, Form 1. Forthcoming bond, attachment, Rule 2.10,

Form 4. Garnishment,

Affidavit, After judgment, Rule 2.12, Form 4. Before judgment, Rule 2.12, Form 1.

Answer, Rule 2.12, Form 2. Bond, Rule 2.12, Form 3.

Guardian ad litem, Appointment,

Motion, Rule 1.17, Form 2. Petition, Rule 1.17, Form 4.

Consent, Rule 1.17, Forms 3, 5. Habeas corpus,

Petition, Rule 2.21, Form 1. Return by sheriff, Rule 2.21, Form 3. Writ, Rule 2.21 , Form 2.

Injunction, complaint, Rule 3.19, Form 1. Interrogatories to parties,

Answers, Rule 1.27, Form 3. By defendant, Rule 1.27, Form 2. By plaintiff, Rule 1.27, Form 1. Mot.ion for leave to serve, R11le 1.27,

Form '8. Objections, Rule 1.27, Form 4.

Notice of hearing, Rule 1.27, Form 5. . Order overruling, Rule 1.27, Form 6.

Order sustaining, Rule 1.27, Form 7. Order granting leave to serve, Rule 1.27,

· Form 9. Intervention, petition, Rule 3.4, Form 1. Joining necessary or indispensable parties,

. Rule 1.17, Forms 6, 7·. · ··' Judgment of conveyance, Rule 3.'!5, Form 1.

FORMS-Continued Jury trial,

Demand, Rule 2.1, Forms 1, 2. Motion to strike, Rule 2.1 , Form 3.

Stipulation waiving, Rule 2.1, Forms 4, 5. Leave to amend complaint, motion, Rule 1.15,

Form 3. Leave to file supplemental complaint, affidavit,

Rule 1.15, Form 1. · Mandamus,

Alternative writ, Rule 2.19, Form 2. Motion to quash, Rule 2.19, Form 3. Petition, Rule 2.19, Form 1. Return, Rule 2.19, Form 4.

Peremptory writ, Rule 2.19, Form 5. Master,

Adjournment of proceedings, notice, Rule 3.14, Form 6.

Draft report, notice, Rule 3.14, Form 7. Notice of first meeting, Rule 3.14, Form 5. Order appointing,

General, Rule 3.14, Form 2. Special, Rule 3.14, Form 3.

Order for reference, Rule 3.14, Form 4. Report, Rule 3.14, Form 8.

Exceptions, Rule 3.14, Form 10. Notice of filing, Rule 3.14, Form 9.

Stipulation for reference, Rule 3.14, Form 1. '

Motions, Rule 1.7. Allowance of account, receiver, Rule 3.20,

Form 3. Amend judgment, Rule 2.8, Form 5. Appointment of guardian ad litem, Rule

1.17, Form 2. ·· .. ·, . Bring third party because of counterclarm,

Rule 1.13, Form 1. Compel answer to interrogatories, Rule

1.31, Form 5. , Compel answer to oral interrogatories,

Rule 1.31, Form 1. . , . , Compulsory physical examination, 'Rule

1.29, Form 1. Continuance, Rule 2.4, Form 1. Correct clerical error, Rule 1.38, Form 1. Default judgment, failure to produce

documents, Rule 1.31, Form 7. Directed verdict, Rule 2.7, Forms 1, 2. Dismiss, Rule 1.11, Form 1. Dismiss action, failure to answer inter

rogatories, Rule 1.31, Form 6. Dismissal, Rule 1.35, Form 4. .

Failure to produce documents, Rule 1.31, Form 8.

Substitution not timely, Rule 1.19, Form 5.

Dismissal at close of plaintiff's evidence, Rule 1.35, Form 14.

Dissolve attachment, Rule 2.10, Form 8. Enlargement of time, Rule 1.6, Forms 1-3. Judgment, Rule 2.7, Forms 3, 4, 7.

Order granting, Rule 2.7, Form 6. Order overruling, Rule 2.7, Form 5.

Judgment on pleadings, Rule 1.11, Form 2. Leave to amend complaint, Rule 1.15,

Form 3. · .: Leave to serve interrogatories on parties,

Rule 1.27, Form 8. Mandamus, quash, Rule 2.19, Form 3. More definite statement, Rule 1.11, Form 3. New trial, Rule 2.8, Forms 1, 2. Notice, codefendant to be dropped, Rule

1.18, Form 1. • ': Order adding necessary party .. plaintiff,

Rule 1.18, Form 2. . , ., .. ' Preliminary injunction, Rule 3.19, Form 3.

8505


FORMS-Continued Motions-Continued

Pro confesso, Rule 3.9, Form 1. Production of documents, Rule 1.28, Form

1. Reference, Rule 3.12, Form 1. Requirements, Rule 1.7, Author's Com

ment. Strike answer, failure to answer inter

rogatories, Rule 1.31, Form 6. Strike demand for jury trial, Rule 2.1,

Form 3. Strike impertinence and scandal, Rule

1.11, Form 5. Strike insufficient defense in answer, Rule

1.11, Form 4. Strike parts of deposition de bene esse,

Rule 1.32, Form 3. Substitution of,

Executor, Rule 1.19, Forms 1-3. Receiver, Rule 1.19, Form 8. Successor officer, leave to file supple

mental complaint, Rule 1.19, Form 12.

Summary judgment, Rule 1.36, Form 4. Suppress deposition, Rule 1.26, Form l. Suppress deposition de bene esse, Rule

1.32, Form 4. Time for taking testimony, Rule 3.13,

Form 1. Transfer of action, law courts, Rule 1.39,

Form 1. United States officer substituted as plain

tiff, Rule 1.19, Form 11. New trial,

Motion, Rule 2.8, Forms 1, 2. Order denying, Rule 2.8, Form 3. Order granting, Rule 2.8, Form 4.

Nonconsenting party, joining, Rule 1.17, Form 7.

Notice, Allowance of account, receiver, Rule 3.20,

Form 3. Amended complaint, Rule 1.15, Form 4. Cross-motion, summary judgment, Rule

1.36, Form 3. Deposition de bene esse, Rule 1.32, Form 1. Dismissal by plaintiff, Rule 1.35, Form 1. Draft report of m!lster, Rule 3.14, Form 7. Master, adjournment of proceedings, Rule

3.14, Form 6. Motion,

Amend pleadings, Rule 1.15, Form 6. Codefendant to be dropped, Rule 1.18,

Form 1. Leave to amend complaint, Rule 1.15,

Form 5. Leave to file supplemental complaint,

Rule 1.15, Form 7. Pre-trial hearing, Rule 1.16, Form 1. Quash subpoena duces tecum, Rule

1.34, Form 3. Special m!lster, first meeting, Rule 3.14,

Form 5. Notice of motion,

Dismissal by plaintiff, Rule 1.35, Form 3. Dismissal for failure to prosecute, Rule

1.35, Form 12. Failure to attend taking deposition, con

tempt, Rule 1.34, Form 8. Summary judgment, Rule 1.36, Forms 1, 2.

Notice to defend, Rule 1.3, Form 1. Objections, interrogatories to parties, Rule

1.27, Form 4.

FORMS-Continued Oral examination,

Affidavit, motion to compel answer, Rule 1.31, Form 2. ·

Certificate of officer, refusal to answer, Rule 1.31, Form 3.

Motion to compel answer, Rule 1.31, Form 1. Affidavit, Rule 1.31, Form 2. Notice, Rule 1.31, Form 4.

Notice of motion, compel answer, Rule 1.31, Form 4.

Refusal to answer, certificate of officer, Rule 1.31, Form 3.

Orders, . Adding necessary party plaintiff, Rule

1.18, Form 3. Form of motion, Rule 1.18, Form 2.

Adding parties defendant, Rule 1.18, Form 4.

Allowing dismissal, Rule 1.35, Form 5. Amending judgment, Rule 2.8, Form 6. Compelling physical or mental examina-

tion, Rule 1.29, Form 3. Continuing action against surviving party,

Rule 1.19, Form 7. Correct clerical error, Rule 1.38, Form 2. Default or dismissal, failure to produce

documents, Rule 1.31, Form 10. Denying motion for,

New trial, Rule 2.8, Form 3. Summary judgment, Rule 1.36, Form

6. Denying production of documents, Rule

1.28, Form 4. Dismissal, failure to comply with order of

court, Rule 1.35, Form 13. Enlargement of time, Rule 1.6, Forms 5-7. General master, appointment, Rule 3.14,

Form 2. Granting leave to serve interrogatories on

parties, Rule 1.27, Form 9. Granting new trial, Rule 2.8, Form 4. Granting pre-trial hearing, Rule 1.16,

· Form 2. Pre-trial on court's own motion, Rule 1.16,

Form 3. Reference, Rule 3.12, Form 2.

General master, Rule 3.14, Form 4. Requiring production of documents, Rule

1.28, Form 3. Special master, appointment, Rule 3.14,

Form 3. Substituting assignee, Rule 1.19, Form 10. Substituting executor as party, Rule 1.19,

Form 4. Substituting officer, Rule 1.19, Form 13. Substituting receiver, Rule 1.19, Form 9. Suppressing deposition, Rule 1.26, Form 3. Sustaining objections to requests for ad-

mission, Rule 1.30, Form 4. Time for taking testimony, Rule 3.13,

Form 2. Transfer action to law court, Rule 1.39,

Form 2. Partner, suggestion of death, Rule 1.19, Form 6. Peremptory writ, mandamus, Rule 2.19, Form

5. Perpetuation of testimony,

Motion, pending appeal, Rule 1.22, Form 5. Notice of application for order, Rule 1.22,

Form 3. Order to take depositions, Rule 1.22, Form

4.

3506


FORMS-Continued Perpetuation of testimony-Continued

Petition, Rule 1.22, Form 1. Take depositions, Rule 1.22, Form 2.

Petition, Alternative writ, mandamus, Rule 2.19,

Form 1. Appointment of guardian ad litem, Rule

1.17, Form 4. Certiorari, Rule 2.17, Form 1. Intervention, Rule 3.4, Form 1. Receiver, approval of account, Rule 3.20,

Form 2. Rehearing, Rule 3.16, Form 1.

Physical examination, Affidavit in support of motion, Rule 1.29,

Form 2. Motion, Rule 1.29, Form 1. Order, Rule 1.29, Form 3.

Pleading, Capacity to sue or be sued, Rule 1.9,

Forms 1-3. Conditions precedent, Rule 1.9, Forms 7, 8. Corporate capacity, Rule 1.9, Form 4. Fraud, complaint, Rule 1.9, Form 5. Judgment, Rule 1.9, Form 10. Mistake, money overpaid, Rule 1.9, Form 6. Official document or act, Rule 1.9, Form 9. Special damage,

Loss of profits, Rule 1.9, Form 12. Personal injury, Rule 1.9, Form 11.

Technical, abolished, Rule 1.8. Preliminary injunction, motion, Rule 3.19,

Form 3. Pre-trial orders, Rule 1.16, Forms 4, 5. Pro confesso, Rule 3.9, Form 2.

Motion, Rule 3.9, Form 1. Production of documents,

Affidavit in support of motion, Rule 1.28, Form 2.

Dismissal, affidavit, Rule 1.31, Form 9. Failure to comply,

Motion for dismissal, Rule 1.31, Form 8.

Order, default or dismissal, Rule 1.31, Form 10.

Motion, Rule 1.28, Form 1. Affidavit, Rule 1.28, Form 2.

Motion, for default, Affidavit. Rule 1.31, Form 9. Failure to comply, Rule 1.31, Form 7.

Order denying, Rule 1.28, Form 4. Order requiring, Rule 1.28, Form 3.

Prohibition, Alternative writ, Rule 2.18, Form 2.

Return, Rule 2.18, Form 3. Petition, court without jurisdiction, Rule

2.18, Form 1. Quo warranto,

Usurpation, elective local office, Rule 2.20, Form 1.

Village illegally incorporated, Rule 2.20, Form 2.

Receiver, Account, Rule 3.20, Form 1.

Notice and motion for allowance, Rule 3.20, Form 3.

Petition for approval, Rule 3.20, Form 2. .

Motion for order, Rule 3.12, Form 1. Order, Rule 3.12, Form 2.

Rehearing, petition, Rule 3.16, Form 1. Reply, Rule 1.8, Form 69.

8507

FORMS-Continued Reports,

Master, Rule 3.14, Form 8. Exceptions, Rule 3.14, Form 10. Notice of filing, Rule 3.14, Form 9.

Request for instructions, Rule 2.6, Form 1. Restraining order and receiver, allegations,

Rule 3.19, Form 2. Return,

Alternative writ, mandamus, Rule 2.19, Form 4.

Attachment, Rule 2.10, Form 5. Return of service,

Equity, Rule 1.3, Form 2. Law, Rule 1.3, Form 3.

Sequestration, writ, Rule 3.15, Form 2. Sheriff's costs, Rule 1.3, Form 4. Signature,

Attorney, Defendant, Rule 1.5, Form 2. Firm represents party, Rule 1.5, Form

3. Plaintiff, Rule 1.5, Form 1.

Party not represented by counsel, Rule 1.5, Form 4.

Stipulations, Deposition,

Oral examination, Rule 1.23, Form 1. Written interrogatories, Rule 1.23,

Form 2. Dismissal, Rule 1.35, Form 2. Enlarging time to plead, Rule 1.6, Form 4. Order approving, Rule 1.6, Form 7. Reference to master, Rule 3.14, Form 1. Waiving jury trial, Rule 2.1, Forms 4, 5.

Subpoena, Rule 1.34, Form 1. Certificate of non-attendance, Rule 1.34,

Form 7. Failure to attend taking deposition,

Affidavit, Rule 1.34, Form 6. Order for attachment, Rule 1.34, Form

9. Writ of attachment, Rule 1.34, Form

10. Notice of motion, contempt, Rule 1.34,

Form 8. Order, issuance of attachment, Rule 1.34,

Form 9. Taking deposition, Rule 1.34, Form 5.

. Subpoena duces tecum, Rule 1.34, Form 2. Deposition, Rule 1.34, Form 5. Notice of motion to quash, Rule 1.34, Form

3. Order quashing, Rule 1.34, Form 4.

Suggestion of death of one of parties, Rule 1.19, Form 6.

Summary judgment, Rule 1.36, Form 7. Affidavit, Rule 1.36, Form 5. Motion, Rule 1.36, Form 4. Notice of cross motion, Rule 1.36, Form 3. Notice of motion, Rule 1.36, Forms 1, 2. Order denying motion, Rule 1.36, Form 6.

Summons, Chancery, Rule 1.3, Form 6. Law, Rule 1.3, Form 5.

Time for taking testimony, Motion, Rule 3.13, Form 1. Order, Rule 3.13, Form 2.

Trial notice, actions at law, Rule 2.2, Form 1. Writ of assistance, Rule 3.17, Form 1.

Affidavit, Rule 3.17, Form 2. Purchaser, Rule 3.18, Form 1.

Affidavit, Rule 3.18, Form 2.


FORMS-Continued · .i Writ of attachment, Rule 2.10, Form 3. :

Failure' to attend taking deposition, Rule '' i , ,-: 1.34, Form 10.

t:Writ of poss~ssion, ejectment, Rule 2.11, Form . i I ·3.' :. i :

" (W-ritten ,interrogatories, ~ - Failure to comply, motion to strike, Rule

1.31, Form 6. . . : . -~ ,: : Mot.i.Qu1to .compel answer, Rule 1.31, Form

5. FRAUD .r; 1 .- ~:~c/·-~

Affirmative defense, pleading, Rule 1.8. Complaint, forin, Rule 1.9, Form 5. For~,.- ,l,tule 1.8, Form 57. Pleading with particularity, Rule 1.9. Rescission of contract; c6mpH1int, form, Rule

1.8, Form 43. GARNISHMENT -· .. : .. :. ''Default judginent, scire facias, final judgment,

Rule 2.12. Forms,. !this: jridex·.

. ' ' :Ga:lfnishee's.Janswer, traverse, time for, failure to file, effect, Rule 2.12.

GENERAL MASTERS : ,..,~po,i~tfll.ep.t, oaths, etc., Rule 3.14. · GQPI>;$; $0LP A:tjD DELIVERED · Complaint, fon:n, Rule 1.8, Form 15. GUA~DI~ 'AD LITEM ·• · ··cohsent'

. ' ITef~n~ant, form, Rule 1.17, Form 3. 1 ,. Plaintiff, form, Rule 1.17, Form ''5. ' Motiori for appointment, form, Rule 1.17, Form

2. 1 Pa::rties, ·. ·su[ts by or against infants or in

competent persons, Rule 1.17. P~ition for appointment, plaintiff,. form, Rule

1.17, Form 4. GUARDIANS

.Parti~s •. Rule 1.17. ''! '' · 'S'uits' by or against infants or incompetent

, . '· , persons, Rule 1.17. , . · Prosecut'i:on ·of action in name of, Rule 1.17.

" 1 ~utt ~n;?afUe ,.of,: Rule 1.17. GUEST

Complaint, gross .negligence, form, Rule 1.8, . , _Form 16. -

~ABEAS CORPUS . . Application, notice, etc., Rule 2.21. For1,lls, .

Petition, Rule 2.21, Form 1. ·! .: : Return- by sheriff, Rule 2.21, Form· 3.

Writ, Rule 2.21, Form 2. Petition, form, Rule 2.21, Form 1. Respondent's return, Rule 2.21. Return by sheriff, form, Rule 2.21, Form 3.

., .writ, form, Rule 2.21, Form 2. HABERE FACIAS POSSESSIONEM

·''Ejectment action, Rule 2.11.

HEARING . Masters, Rule 3.14.

Exceptions .to report, Rule 3.14; . :· Place of, Rule 3.14. ·· · ..

Motion, notiCe, caption, form, Rule 1.7, Form 4. .. f.~:r;petua.tion of testimony, Rule 1.22, Authors'

"' • · '> -' Comment. HEIRS

Party to suit to execute trusts of will, Rule ~,5: >

HOLIDAYS . i.

Time,- · computat.ion; ·Rule 1.6 .. ILLEGALITY. • . ~; "•Affirmative defense, pleading, Rule 1.8. INCO~PETENTS , · . ' . · ' A'Hion, continuance by or against representa-.. , . tive, Rule 1.19. . ' .

~ .. ,ll .,• Parties to suits-by or against, Rule 1.17. Suits by o;- against, . parties; Rule . 1.17 .

INDORSEMENT .. .c ·; Depositions, .errors :and irregularities, Rule 1.26. INFANTS . . . . ...

Defepse to ' a~tion, form, ~ule 1.8, Foi:m .. ~7. Parties to smt by or· agamst, Rule 1.17.· ··.

. ,. ' Suits by 'l!>i< a:ga'inst, . parties, Rule 1.17>

INFORMATION Quo warranto, .Rule 2:.20,

INJUNCTION }' i .A!Uegations, :~straining ·order and ·receiver,

form, Rule 3.19, Form 2·. . ,. Complaint, . form, ' Rule 3.19, Forin 1.: l

.:Motion, ' preliminary injunction,: form, Rule . 3.19, Form 3. . .

Nuisance' fJ10m gases · and fumes, · cpmplaint, form, Rule 1:8, ·Form 17. ,

· · Proceedings for, Rule 3.19. lN~,A:ffiTY . . , , . • . . . .. : ... · · ~ . · p~~ense to. action,- form, Rule. 1.8, Form 68. INSPECTION '. . ' .

. : Chain of title, ejectment action, Rule . 2.11. · · ·Documents, · books; accounts, objects, tangible

~hi,pgs, etc., Rule 1.28. . i

INSTRUCTIONS . . . ·. . . Exception to, ··necessity, Rule 2.6. , Exceptions unnecessary, Rule 2.6.

. . Requests for, Rule 2.6:· · · . ·. · ·' · '" · . ' i ' 'Fotm, Rtile -2.6, Form l. ' · INSU:RANCE . ,.. .. . . . .

·' Complaint, recovery, form; Ru1e;· '1.'8, Forms ' .. 18-20. ' .

•: .: Reformation for · mistake, . complaint, form, , , . ~ule 1.8, Fox;,m 2(> . ...

I:N'l'EREST . . . Default judgment, garnishee, Rule ·2.12.

INTERLOCUTORY MATTERS Affidavits, Rule 3.12 .

\

INTERPLEADER \' ' ·Intervention . distinguisheq; Rule ' 3.4, Authors'

Comment. · INTERR6GATORiE's ·

Answer, Rule. 1.27. ~ Refusal, Rule 1.31. · · ·· .:.~ . .

Cross-interrogatories; form; Rule ,1.25, Form 3. ,, : · 'Form, er'Fbrs and rrl'egularitieil, effect, waiver,

Rule 1.26. · Masters, , 1'..' ( ,.

· · Accounting before; Rule 3.14. Examination of claims by, Rule 3.14.

,t ' Parties , ·· 1 ,, ·J ' Deposition; subsequent to, Rule 1.27.

Forms, this index. · · · 1

Number, Rule 1.27 . .. Written, · · Deposition,

Stip~ll;l~ion, . form, Rule ~.23, Form 2 . Takmg upon, Rule 1.21.

. , Forms, this index. , Refusal to answer, Rule 1.31, ·Authors' , .. , Comment. .

Service, notice, ~u~e 1.25. ·

INDEX-RULES · OF CIVIL PROCEDURE

INTERVENTIONS '::::_ , Assertion' of right, Rule 3.4. _ Jn~erpleader distinguished, Rule 3.4, Authors' •iJ 1-C-- -' Comment; , .

Petition, form, Rule 3.4, Form 1. INVENTORIES

Receiv,ers, Rule 3.20. ISSUES ,

Jury trial for part of, Rule 2.1. Time when cause deemed· at issue, Rule 3:8.

JOINI>E;iR!~ •: . . ". . , ... Actwns, Rule 1.8. · Causes of action, Rule 3.7.

tit(; · Equityf Rtile ·3.2, :Authors' Comment . . Indispensable parties, : . . ...

Failure, defense, motion, Rule 1.11. Form, Rule, 1.17, form 6. ·.

:·.J Motions, d~rected verdict with motion for new · trial, ·Rule 2.7. - ' Necessary part~es, form, Rule 1.17, Form. 6. N oncbnsenting ' Party jointly interested, form,

Rule 1.17, Form 7. Parties,·Rule-1':17. _y··:·?, 1:

JoiNT · nEMANDs . _ Par,ties to suits involving, Rule 3.2.

JUDGES .r: ... : . . : -- . . . . · Circuit court, appointment of general masters,

Rule 3.14. Cot~rt, reference o;f rules to court construed to

· apply to jUdge, Rule 1:'1.. · Distribution of work, Rule 1.1.

·· · Duties :oLpresiding judges; Rule 1.1. _New t;-ial, grant, statement of grounds, re-

-;= 1 ·l· . : ·. -qu1rement,. Rule 2.Jl. · ·. Pleadings and papers, filing with, Rule 1:4. Presiding, administrative purposes, Rule 1.1.

'"''· .Summary judgment or .. decree, motion for·, case not fully adjudicated, duties, E.ule 1.36.

'Trial, setting cases for; Rule 2.2. · ..

JUDGMENTS AND DECREES Alteration or amendment OIJ. court's initiative,

.;::.- .: 1Rule 2.8. _, -Arrest of judgment, orderg'ranting or denying,

. .;1_. · , .ol!>ject~QP ~r exception, ~ necessity, Rule 2.6. Assistance, wnt of to enforce, Rule 3.17; Clerical mistakes, correction, Rule 1.38.

Motion, Rule 1.38, Form 1. . · Order, form, Rule .1.38, Forni 2.

Consolidation of causes, Rule 1.20. Conveyances, · , ..

Enforcement, Rule 3.15. · · .. · Forml Rule 3.15, Form '1. · . .., Correction of clerical mistakes, Rule 1.3!1.

. Counterclallp. ~ or cross-clairi:t, separate. judg-ment, Ru!e 1.13. · · · ·

Default, . , . Motion, verified, Rule ' 2.9, Authors' Com-

ment. · . . Setting aside, Rule 2.9, Authors' Comment. Soldiers' and Sailors' Relief Act, Rule 2.9,

.· Authors' .,Comment. · D~fault Judgment, generally, this index. · Discovery in aid .of, Rule 1.40. ··. . Documents; delivery, enforcement; Rule 3.15. Enforcement of final .. decree, Rule 3.1·5. Executions, issuance; Rule 2 ~ 13. Final, against ga!nishee, resirjctions, Rule 2.12. Judgment notwithstanding · verdict, grant or

denial, objection or exception, necessity Rule 2.6. '' - · '

· · Judgment · of · ouster, quo warranto, Rule 2.20. · -· Money, executions on. decrees fori Rule 3.15.

JUDGMENTS AND DECREE~-Continued .. . . Motio;n for judgment, entry iri accorda:J;lce, with

. · motion for directed ·.verdiSt; Rule ·2.7. . .. Mqtion .to c·orrect . clerical'-, error, form,., Rule

· · .. 1:38, -Form··L -· · · · ·-- '·''·' -- ·· -- ·•··· Motions to enforce and execute, Rule 1.12. .On pleadings, mption, fgr.m, _Rule 1._.11, Forni -~. On the pleadir_1gs, motion, Rhfe 1'.11; Authors'

dtdfr~~~;~dt . cierical; error,' J~rrrl.; Rulg 1.38, Form 2. ~-- · · ' ·

Pleadings, Rule 1.9. . \ : -:;·~ , ; ~:' ··· Amendment after; Rule 1.15.

Demand for, Rule 1.8, Form, Rule 1.9, Form 10. , ... T Motion for judgment or decree on, Rule

1.11. Pro confesso; . J ~· - .. ,,

Default, Rule 3.9. _ Setting aside, Rule 3.10.

Final d-ecree :following, Rule :3.10. . · J

Proceeding in lieu of decree, Rule 3.11. Service upon parties, necessity; Rule 1.4.' :·

Res judicata, affirmative defense, Rule >1.8. Satisfaction as .. to one ··only, ti,me1; ;Ru~e 1.3. Sequestration, enforcement , o~ - final decree,

Rule 3.15. .t· · ::1 .::"!": :\ Service, Rule 1.4. · " . . .

:·' Settifig , aside, reSeJ.Ned decision on motion for directed verdict,.Rule i2·,7. ·- :~ • ··i

Summary Judgment o.r Decree, generally, this indeiK. :r:'~: · t .. : , · -- . , . . . -,

Time, enforcement of , final' decree; Rule~ 3.15.

JUDICIAL OFFICERS. . ., . ' _-. D~P,!f;~t~~~e ~a~~~\u~~liak;3~ .. , ....

. Perpetuation of testimony, Rule 1.22. ;,..:;;,i.) :)'-''1, . ; \,\. ' . . : . : ' '':':!.

JURISDICTION · . lJ

Defenses, pleading lack of, Rule 1.11. Depositions on absence from, Rule 1.22. . ,_ . . Dismissal of actiQil ~n,~~c~ o~; ~ule 1.35. Probate, Rule 3J),. Authors' ' Clon'iitient_.: \ Transfer of cause on demand, exceedmg,\'Rule

·~·'- :·;: 1.13.- -~ ~";·· '-- r. j··,., .' l'"".· < !, ~- .,t,.. •. .. - r-· )

JURY TRIAL ; ,, ' -;Demand for, "Eule 2.L. :;c . : , · c.~ .. _,

Specification of issues, Rule 2~1. W:atver, · EAl~' .. ?•h , __ ·; · r . .: i_; , , r .. , •. : "1

Forms, this index. · , . . . , · ; -, Objection to question. p:ropou,riqed to wi~ness,

Rule 1~37. " • . : .. : .. · . : •Right prese:r;y~<l: R!ilEi. 2.1. ~ · · : ·: r•; i

LACHES .. - ~ '" ~ ..... --, Affirmative defense, pleading, RJ.Ile" 1:8 . . Form, detense;·· R;ule .1.8, .~orm .60. . ·

~~PLORD :AND TENANt .... ' . i • . .

-· · · · · Ejectment against tertarit, 1-a:ndlo'r!i to. be made party, Rule 2.11. ',~' L \ '

LEADtNG QUESTIONS ' •' ' ... T [ Adverse party or . witness, RUle 1.37; .. . .. ,

' • J • \; ., ~ J.

LEAVE 0.~ ._CQU_RT : . ' ' ~- I· ' • ('~' Documentary evidence; withqrawal; Rule 2.5.

. , ,~ ~~art1~. b~for.El1 ~ll;sters, ~tc-., _: P.:la~e , of;' 'Rule

LIBEL ,, . ... _ - '· •. Cdinpla'int, for~, Rqle 1.8, Forms 21, :22.

LICENSE · :' , _,·-~· . _ . .;, Affirmative defense, pl-eading, R4le ,1,8.

8509

INDEX-RULES OF CIVIL PROCEDTJR'I::

LIMITATION OF ACTIONS Commencement of action, complaints, filing,

Rule 1.2, Authors' Comment. Statute of Limitations, generally, this index.

MAIL Depositions sent by, Rule 1.24.

De bene esse, Rule 1.32. Pleadings with notice on constructive service,

Rule 1.3. Service by,

Additional time for acts or proceedings required, Rule 1.6.

Pleadings, Rule 1.4.

MALICIOUS PROSECUTION Complaint, form, Rule 1.8, Form 23.

MALPRACTICE Complaint, form, Rule 1.8, Form 24.

MANDAMUS Alternative writ,

Form, Rule 2.19, Form 2. Issuance, Rule 2.19.

Amendment, Rule 2.19. Forms, this index. Motion to quash, form, Rule 2.19, Form 3. Peremptory writ, Rule 2.19.

Form. Rule 2.19, Form 5. Petition, form, Rule 2.19, Form 1. Return, form, Rule 2.19, Form 4.

MASTER AND SERVANT Assumption of risk, affirmative defense, Rule

1.8. Fellow servant, injury by, affirmative defense,

Rule 1.8.

MASTERS Generally, Rule 3.14.

Accounting before, Rule 3.14. Appointment, Rule 3.14. Assignment of time and place for proceedings

on reference to, Rule 3.14. Bond, Rule 3.14. Dispatch in presenting matters referred to for

hearing, Rule 3.14. Disqualification, grounds, Rule 3.14. Evidence on reference to, Rule 3.14. Examination of claimants, Rule 3.14. Exceptions to report, Rule 3.14. Former proofs used in proceedings before,

Rule 3.14. Forms, this index. Hearings, Rule 3.14.

Exceptions to report, Rule 3.14. Identification of documents, etc., Rule 3.14. Interrogatories, examination of claimants,

Rule 3.14. Oath, Rule 3.14. Place of proceedings on reference to, assign-

ment, Rule 3.14. Powers and duties, Rule 3.14. Procedure before, Rule 3.14. Production of documents, Rule 3.14. References to, Rule 3.14.

Issues for findings of fact for pre-trial purposes, Rule 1.16.

Report, Rule 3.14. Filing and notice thereof, Rule 3.14.

Taking of testimony, Rule 3.12. Time for proceedings on reference to, assign

ment, Rule 3.14.

MECHANIC'S LIENS Commencement of action, Rule 1.2, Authors'

Comment. Foreclosure, complaint, form, Rule 1.8, Form

25. MENTAL EXAMINATION

Adverse party, Rule 1.29. Order, form, Rule 1.29, Form 3.

Order for examination, Rule 1.29. Report of findings, Rule 1.29.

MILEAGE Persons served with subpoena, Rule 1.34.

MISJOINDER Causes of action, Rule 3.7, Authors' Comment. Parties, Rule 1.18.

MISTAKE Defense, form, Rule 1.8, Form 66. Money overpaid, complaint, form, Rule 1.9,

Form 6. Pleading with particularity, Rule 1.9.

MONEY Execution on decrees for, Rule 3.15. Had and received, complaint, form, Rule 1.8,

Form 27. Lent, complaint, form, Rule 1.8, Form 28. Paid by mistake, complaint, form, Rule 1.8,

Form 29. MORTGAGES

Foreclosure, complaint, form, Rule 1.8, Fonn 30. MOTIONS

Admission, request for, fixing time to answer, Rule 1.30.

Allowance of receiver's account, form, Rule 3.20, Form 3.

Amending judgment, form, Rule 2.8, Form 5. Appeal, enlargement of time, restriction, Rule

1.6. Bring third party because of counterclaim,

form, Rule 1.13, Form 1. Captions, Rule 1.7. -

Form, Rule 1.7, Form 2. Codefendant to be dropped, form of notice,

Rule 1.18, Form 1. Combined with notice of motion, caption,

form, Rule 1. 7, Form 3. Consolidation,

Causes, Rule 1.20. Defenses, Rule 1.11.

Continuance, Form, Rule 2.4, Form 1. Time for making, Rule 2.4.

Correction of judgments, decrees and orders, Rule 1.38.

Decree pro confesso, Rule 3.9, Authors' Comment.

Default judgment, Form, Rule 2.9, Form 8. Set aside entry, form, Rule 2.9, Form 10. Verifying, Rule 2.9, Authors' Comment.

Defenses, consolidation, Rule 1.11. Depositions, terminate or limit examination,

Rule 1.24. Directed verdict, Rule 2.7, Forms 1, 2.

Effect, Rule 2.7. Enlargement of time, restriction, Rule 1.6. Joinder, motion for new trial, Rule 2.7. Reservation of decision, Rule 2.7.

Discovery, Compelling answer, Rule 1.31. Documents and things for inspection,

copying or photographing, Rule 1.28.

8510


MOTIONS-Continued Dismissal,

Judgment on the pleadings distinguished, Rule 1.36, Authors' Cnmment.

Substitution not timely, form, Rule 1.19, Form 5.

Summary judgment distinguished, Rule 1.36, Authors' Comment.

Dismissal at close of plaintiff's evidence, form, Rule 1.35, Form 14.

Dismissal for failure to prosecute, affidavit, form, Rule 1.35, Form 11.

Dissolve attachment, Form, Rule 2.10, Form 8. Traverse, form, Rule 2.10, Form 9.

Ejectment, change of title, testing sufficiency, Rule 2.11.

Enforcement of final decree, Rule 3.15. Enlargement of time, forms, Rule 1.6, Forms 1-

3. Forms, this index. Grantable as of course, Rule 1.12. Grounds, statement, Rule 1.7. Habeas corpus. quash or discharg':!, Rule 2.21. Intervention, Rule 3.4, Authors' Comment. Involuntary dismissal, Rule 1.35, Authors'

Comment. Judgment.

After motion for directed verdict, Rule 2.7. Amendment, Rule 2.8. Form, Rule 2.7, Forms 3. 4, 7.

Judgment on the pleadings, Rule 1.11, Authors' Comment. Dismiss1l distinguished, Rule 1.36, Au

thors' Comment. Summ'l.ry jud<rment distinguished, Rule

1.36, Authors' Comment. Judgment or decree, ple'ldinvs on, Rule 1.11. Mandamus. quash, form, Rule 2.19, Form 3. More definite statement, Rule 1.11. New Trhl, this index. Notice of he'lrin~. form, Rule 1.7, Form 4. Oral, permissible, time, Rule 1.7. Order addin~ necess1ry party plaintiff, form,

Rule 1.18, Form 2. Order to show cause, Rule 1.7, Authors' Com

ment. Parties, adding or dropping, Rule 1.18. Perpetuation of testimony pending appeal,

form, Rule 1.22, Form 5. Preli'Tlinary injunction, form, Rule 3.19, Form

3. Pre-trial conference, Rule 1.16. Pre-trial hearing, notice, form, Rule 1.16,

Form 1. Pro confesso, form, Rule 3 9. Form 1. Production of documents, Rule 1.28, Authors'

Comment. Reference, form, Rule 3.12, Form 1. Service,

Exception, Rule 1.4. Time. Rule 1.6.

Signing, Rule 1.7. Speaking motions, permissible, Rule 1.11,

Authors' Comment. Strike,

Complaint, counterclaim, cross-claim or third party claim, Rule 1.11, Authors'

Comment. Sham pleadings, contents in verification,

Rule 1.14. Subpoena, quashing or modifying, Rule 1.34. Substitution of,

Executor. form, Rule 1.19, Forms 1-3. Parties, Rule 1.19. Receiver, form, Rule 1.19, Form 8.

MOTIONS-Continued Successive motions, Rule 1.11, Authors' Com

ment. Summary judgment, form, Rule 1.36, Form 4. Summary judgment or decree, Rule 1.36.

Case not fully adjudicated on, Rule 1.36. Dismissal distinguished, Rule 1.36, Au

thors' Comment. Judgment on the pleadings distinguished,

Rule 1.36, Authors' Comment. Procedure, Rule 1.36.

Suppress deposition, grounds, Rule 1.26. Time for taking testimony, form, Rule 3.13,

Form 1. Time of serving copy, Rule 1.6. Transfer action to law court, form, Rule 1.39,

Form 1. Written, requirement, sufficiency, Rule 1.7.

MUNICIPAL CORPORATIONS Counterclaim against, Rule 1.13.

NEGLIGENCE Complaint, forms, Rule 1.8, Forms 31-39. Contributory negligence, affirmative defense,

pleading, Rule 1.8.

NEW TRIAL Alternative, prayed for in, Rule 2.7. Court, ordering on initiative of, Rule 2.8. Forms, this index. Motion for, Rule 2.8.

Enlargement of time, restriction, Rule 1.6. Errors incorporated in, Rule 2.8. Grounds, Rule 2.8. Joinder with motion for directed verdict,

Rule 2.7. Stay of execution, Rule 2.13, Authors'

Comment. Time, Rule 2.8.

Order granting or denying, grounds, appeal, objection or exception, necessity, Rule 2.6.

Summary judgment, Rule 2.8, Authors' Comment.

NEXT FRIEND Parties, suits by or a_gainst infants or in

competent persons, Rule 1.17. NOMINAL PARTIES

Proceedings against, Rule 3.1. NONJOINDER

Parties, Rule 1.18.

NONSUIT Not superseded by dismissal, Rule 1.35, Au

thors' Comment. Order granting or denying, grounds, appeal,

objection or exception, necessity, Rule 2.6. NOTARIES PUBLIC

Depositions,

NOTES

De bene esse, Rule 1.32. Prepetuation of testimony, Rule 1.22. Taking, Rule 1.23.

Action based upon, attaching as exhibit, pleadings, Rule 1.10.

NOTICE OF MOTION Comoel answer to oral interrogatory, form,

Rule 1.31, Form 4. Contempt, hilure to attend taking deposition,

form, Rule 1.34, Form 8. Dismissal,

Failure to prosecute, form, Rule 1.35, Form 12.

Plaintiff, form, Rule 1.35, Form 3.

8511


~OTICE OF MOTIO.N:--'"Continued · · Protective order, limiting written interroga

tories, form, Rule , 1.25, Form 4. Summary judgment, form, Rule 1.36, Forms

1, 2. NOTICES

Admissions, request for, motion to fix time to answer, Rule 1.30.

Allowance of receiver's account, form, Ru1e 3.20, Form 3.

Answer or defense, form, Rule 1.3, Form 1. '_ Consolidation, Qf causes, Rule 1.20.

Depositions, Action pending, Rule 1.21. Before a,ction, Rule 1.22. De bene esse, Rule 1.32.

\ . Filing, Rule 1.24. Oral examination,

Form, Rule 1.24, Form 1. Time and place of taking, Rule 1.24.

Taking, errors and irregularities, effect, · · Rule 1.26. Time and pla,ce of taking upon oral exam

ination, Rule 1.24. Witnesses, written interrogatories, Ru1e

1.25. Filing, Rule 1.25.

Discovery, documents and things for inspec-tion, copying or photographing, Rule 1.28.

,Dismissal, filing, time, Rule 1.35. Examination, parties or property, Rule 1.29. Forms, this index. Habeas corpus, Rule 2.21. Hearing on motion, caption, form, Rule 1.7, , Form 4.

Injunction, application for, Rule 3.19. Interrogatories to parties, service, Rule 1.27 .

. _ Mast.ers, heC~-rings by, Rule 3.14. Master's report, Rule 3.14.

, , , Motion, codefendant to be dropped, form, Ru1e 1.18, Form 1.

Motion for pre-trial hearing, form, Rule 1.16, Form 1.

Perpetuation of testimony, Rule 1.22. Application for order, form, Rule ·1.22,

Form 3. Receivers, application for appointment, Rule

3.20. Rehearing, stay of proceedings on petition for,

Rule 3.16. Return and filing, deposition on written inter-

. rogatories, form, Rule 1.25, Form 7. ' Service, Rule 1.4. ' Stay writs, application, Rule 2.22. · Summary judgment, cross motion, form, Rule

1.36, Form 3. Taking deposition upon written interroga.,

tories, form, Rule 1.25, Form 1. Time, enlargement, Rule 1.6. Trial, · ,\

Case ready for, Rule ·2.2. Clerk to parties, Rule 2.2.

.i; . Fo,rm, Rule , ;t2, Form 1. Written, service; Rule )..4.

NUISANCE ,-,-.-.Gases .and fumes, complaint for injunction; " ' form, Rule 1.8, Form 17.

o.A'THS AND .A:F:pR~ T~ONS Depositions, Rule 1.24 .

. Errors and irregularities, objection; -Rule ''l ' 1.26.'

Interrogatories .to parties, answer to, ;Rule 1.27. Masters in chancery, Rule 3.14. ·

OATHS AND AFFIRMATIONS-Continued Receivers, inventory and accounting -under,

Rule 3.20. Rehearing, verification of petition, Rule 3.16. Special masters, unnecessary, Rule 3.14. Witnesses,

Depositions, Rule 1.24. De bene esse, Rule 1.32.

Examination on oath in proceedings before masters, Rule 3.14.

OBJECTIONS Admission, facts and genuineness of docu

ments, request for, Rule 1.30. Chain of title, ejectment action, Rule 2.11. Conference, request, Rule 2.6, Authors' Com

ment. Depositions,

Errors and irregularities, notice for taking, Rule 1.26.

Oral examination, Rule 1.24. Discovery, Rule 1.31, Authors' Comment. Evidence, definiteness, Rule 2.6, Authors' Com

ment. Exceptions not required, Rule 2.6, Authors'

Comment. Instructions to jury, time for, Rule 2.6. Interrogatories to parties,

Form, Rule 1.27, Form 4. Notice of hearing, form, Rule 1.27, Form

5. · Order overruling, form, Rule 1.27, Form 6. Order sustaining, form, Rule 1.27, Form 7. Service, Rule 1.27.

Jurisdiction over the person, pleading, Rule 1.11, Authors' Comment.

Jury instructions, Rule 2.6. Motion or pleading, Rule 1.11, Authors' Com

ment. Questions propounded to witness on jury trial,

Rule 1.37. Requests for admissions, form, Rule 1.30, Form

3. Waiver, Rule 1.11. _ Written interrogatories, form, Rule 1.25, Form

5. Waiver, Rule 1.25, Authors' Comment.

OPTIONS , Depositions de bene esse, method of taking,

Rule 1.32. Nominal parties, answer complaint, Rule 3.1.

ORAL EXAMINATION Depositions, Rule 1.24.

Changes, Rule 1.24, Authors' Comment. Errors and irregularities, effect, Rule 1.26. Forms, this index. Stipulation, form, Rule :1.23, Form 1.

Refusal to answer, Rule 1.31. ORDER TO SHOW CAUSE

Motion, Rule 1.7, Authors' Comment. ORDERS ,

Adding necessary party plaintiff, form, · Rule 1.18, Form 3.

Adding parties defendant, form, Rule . 1.18, Form 4. · ·

Amending judgment, form, Rule 2.8, Form 6. Answer to written interrogatories, Rule 1.31,

Authors' Comment. • · Application for, manner of making, Rule 1.7. Arrest -of juqgment, grant or denial, objection

or exception, necessity; Rule · 2.6. · Assistance, writ of to enforce, Rule 3.17. Attachment, failure to attend taking deposi

tion, form, Rule 1.34, Form 9. _ c:·

INDEX RULES--OF CIVIL PROCEDURE

ORDERS-Continued Clerical mistakes, correction, Rule 1.38. Compelling answer, discovery, Rule 1.31. Consolidation of causes, Rule 1.20. Continuing action against surviving party,

form, Rule 1.19; Form 7. Correction of clerical mistakes, Rule 1.38. Defenses, preliminary hearing, defendant to . trial, Rule 1;11. -_ · ·

Denying motion for, _summary judgment, form, Rule 1.36, Form 6.

Depositions, . Before action, :perpetuation of testimony,

Rule lr,22; . . . Protection of parties and deponents, Rule

1.24. Witnesses, written interrogatories,

RuleL25. Directed verdict, grant or denial, objection or

exception, necessity, Rule 2.6. Discovery, failure , to comply with, con

sequences, Rule 1.31. Discovery and production, documents and

things for inspection, copying or photo-grap:qing, Rule 1.28. ·

Dismissal, Conditions, Rule 1.35, Forms 6-10. Form, Rule 1.35, Form 5. Granting, terms and conditions, Rule 1.35. Involuntary, effect, Rule 1.35. ·

Ejectment, change . of title, sufficiency, Rule 2.11. ' -

Enforcement of final decree, Rule 3.15. Enlargement of time, forms, Rule 1.6, Forms

5-7. Examination, parties or property, Rule 1.29.

Report of findings, delivery, Rule 1.29. Exception unnecessary, Rule 2.6. Garnishe·e, discharge, Rule 2.12. Granting motion ·for judgment, form, -.Rule

2.7, Form 6. ,. · Granting pre-trial hearing, form, Rule 1.16,

Form 2. Injunction, requirements for, Rule 3.19 . . Inspection, photographing, etc., contents, Rule

1.28. . - . ... Interrogatories to parties, Rule 1.27.

Protection of pa:rties and deponents, Rule 1.27. '-

Judgments notwithstanding verdict, grant or denial, objection or exception, necessity,

Rule 2.6. New trial,

Grant or denial, grounds, objection or exception, necessity, Rule 2.6.

Initiative of court; · speCification of grounds, Rule 2 .. 8.

Nonsuit, objeCtion or exception, necessity, Rule 2.6. · •

Overruling mot_ion fqr, judgment, form, Rule 2.7, Form 5. - · · · · ·

'· . Parties adding or dropping by court, Rule 1.18. Perpetuation · .of testimony, depositions, form,

Rule 1.22, Forni 4. Persons beneftcill-HY interested to be made

parties, Rule 3.3. . ~ Persons not parties optaining, enforcement of

obedience, Rule, 3-.18. Pre-trial, forms, Rule 1.16, Forms 4, 5. Pre-trial conference, Rule-1.16. Pre-trial on court's ow:n motion, · form, Rule · · 1.16, Form 3. - - -._ r- - - :

Protection of parties; -infants or incomP,.etent persons, Rule 1.17. ·· ---- · -· - ' !

Protection of parties and deponents, deposi~ tions, Rule 1.24. Witnesses, written interrogatories, Rule

. 1.25. Reference, form, Rule 3.12, Form 2. Restraining order, Rule 3.19. Service, Rule 1.4. Special, execution, issuance of, Rule 2.13. Substituting assignee, form, Rule 1.19, Form

10. Substituting executor as party, form, Rule

1.19, Form 4. Substituting receiver, form, Rule 1.19, Form 9. Summary judgment, Rule 1.36, Authors' Com

ment. Time,

Enlargement, Rule 1.6. Service, responsive pleadings, Rule 1.11. Taking testimony, form, Rule 3.13, Form

2. Transfer action to law court, form, Rule , 1.39,

Form 2. : Transfers . of actions erroneously begun, Rule

1.39. -PAPERS

Service, Rule 1.4. PAROLE AGREEMENTS

Parties and attorneys, Rule 1.5. PARTIES

Generally, Rule 1.17. Additional parties, counterclaim or cross

claim, Rule 1.13, Authors' Comment. Administrators, suit in name of, Rule 1.17. Adverse,

Amendment of pleadings, consent, Rule 1.15.

Impeachment, Rule 1.37. Witnesses, examination of, Rule 1.37.

Caption of pleadings to indicate, Rule 1.7. Class suits, effect, Rule 3.6. Co-defendant, death, ejectment proceeding

against surviving defendants, legal representative or heirs or devisees, Rule

2.11. Consolidation of causes, Rule 1.20. en-plaintiff, death, ejectment,

Heirs or devisees substituted, Rule 2.11. : Legal -representative, substitution, Rule

2.11. Counterclaim or cross-claim, bringing in ad

ditional parties, Rule 1.13. 'Death, ·substitution, Rule 2.11.

Dism_issal, Rule 1.19. Depositions, notice to of taking, Rule 1.24. Ejectment action, heirs, Rule 2.11. Executives sued in name of, Rule 1.17. Executor or administrator, death, successor in

office, Rule 2.11. Guardians, suit in name of, Rule 1.17. Identity on consolidation of causes, Rule 1.20. Incompetents, !

Continuation of action by or against representative, Rule 1.19.

Suits by or against, Rule 1.17. Indispensable;

Failure to join, motion as defense, pre. liminary hearing, Rule 1.11.

Joinder, form, Rule 1.17, Form 6. Infants, suits on behalf of, Rule 1.17. Interrogatories:· to, Rule 1.27.

Forms, this index. Joint and several demands, Rule 3.2. Jury trial, consent to, Rule 2.1. Landlord, ejectment, Rule ·2;11.

35i3


PARTIES-Continued Misjoinder and nonjoinder, Rule 1.18. Necessary,

Adding, motion for order, form, Rule 1.18, Form 2.

Joinder, form, Rule 1.17, Form 6. Nominal, proceedinqs against, Rule 3.1. Numerous, service, Rule 1.4. Persons in interest or possession, ejectment,

Rule 2.11. Persons not parties obtaining orders, enforce

ment of obedience, Rule 3.18. Physical and mental examination, Rule 1.29. Public officer, successor, continuance of action

by or against, Rule 1.19. Real party in interest,

Action prosecuted in name of, Rule 1.17. Assignee, form. Hule 1.17, Form I.

Request for admissions, Rule 1.30, Authors' Comment.

Service upon, Rule 1.4. Substitution, Rule 1.19. Surviving, continuance of action, Rule 1.19. Tenant, ejectment, Rule 2.11. Transfer of interest, continuance of action by

or against original party, Rule 1.19. Trustee, representation of beneficiaries, Rule

3.3. Trustee of an express trust, suit in name of,

Rule 1.17. Trusts of will, suit to execute, Rule 3.5.

PARTITION Complaint, form, Rule 1.8, Form 40.

PARTNERSHIP Death of partner, suggestion by survivor, form,

Rule 1.19, ·Form 6. Dissolution, complaint, form, Rule 1.8, Form 8.

PAYMENT Affirmative defense, pleading, Rule 1.8. Form, defense, Rule 1.8, Forms 61a, 6lb. Money, executions on decrees for, Rule 3.15. Nominal parties, Rule 3.1.

PERPETUATION OF TESTIMONY Forms, this index. Petition, Rule 1.22, Authors' Comment.

PERSONAL INJURY Pleading special damages, form, Rule 1.9,

Form 11. PERSONAL PROPERTY

Bond, masters appointed for disposition of property, Rule 3.14.

Receivers, inventory, Rule 3.20. PERSONAL REPRESENTATIVE

Ejectment action, death, successor as party, Rule 2.11.

PERSONAL SERVICE Summons, Rule 1.3.

PETITIONS See Pleadings, this index.

PHOTOGRAPHING Discovery, refusal to make, consequencPs, Rule

1.31. Documents, books, accounts, objec!s, tangibie

things, etc., Rule 1.28. PHOTOSTATS

Documents, depositions, Rule 2.5, Authors' Comment.

PHYSICAL EXAMINATION Adverse party, Rule 1.29.

PHYSICAL EXAMINATION-Continued Adverse party-Continued

Affidavit, form, Rule 1.29, Form 2. Motion, form, Rule 1.29, Form 1. Order, form, Rule 1.29, Form 3.

Order for examination, Rule 1.29. Report of findings, Rule 1.29.

PLAINTIFFS Death, ejectment action, heirs or devisees sub

stituted, Rule 2.11. Dismissal, Rule 1.35. Ejectment, death of,

Co-plaintiff, Rule 2.11. Personal representative of decedent, effect, Rule 2.11.

Joinder, Rule 1.17. Summons additional when summons returned

not executed or improperly executed, Rule 1.3.

PLEADINGS Affidavit, accompanied by, necessity, Rule 1.5. Affirmative defenses, Rule 1.8. Allowable, Rule 1.7. Amendments, Rule 1.15.

Conformity to evidence, Rule 1.15. Mandamus, Rule 2.19. Pre-trial procedure, Rule 1.16. Relation back, Rule 1.15.

Ancillary proceedings, commencement, Rule 1.2.

Answer, contents, Rule 1.8. Attachment, Rule 2.10. Breach of trust, specifically, Rule 1.8, Authors'

Comment. Capacity, sue or be sued, Rule 1.9. Caption, content, Rule 1.7. Claims for relief,

New or additional, service, Rule 1.4. Requirements, Rule 1.8.

Complamt, Contents, Rule 1.8. Ejectment action, Rule 2.11. Filing as commencement of suit, Rule 1.2.

Condition of mind, general averment, Rule 1.9. Conditions precedent, averment and denial,

Rule 1.9. Consistency, Rule 1.8. Construction, Rule 1.8. Contracts, unnecessary recitals, Rule 1.10. Counterclaim, dismissal, effect, Rule 1.35. Cross-claims, answer, time, Rule 1.11. Deeds, recitals unnecessary, Rule 1.10. Default, before entry, Rule 2.9. Demurrers, abolished, Rule 1.7. Documents, unnecessary recitals, Rule 1.10. Ejectment,

Change of title, copies of unrecorded instruments, Rule 2.11.

Defenses, limitation, Rule 2.11. Exceptions for, impertinence, etc., abolished,

Rule 1.14. Exhibits, incorporating or attaching, Rule 1.10. Failure to deny, effect, Rule 1.8. Forms, this index. Fraud, particularly, Rule 1.9. Judgment or decree on, Rule 1.11.

Jurisdictional matter, Rule 1.9. Jury trial, demand for, indorsement upon, Rule

2.1. Mistake, specifically, Rule 1.9, Authors' Com

ment. More definite statement, motion, order, non

compliance, effect, Rule 1.11. Necessary, Rule 1.7.

8514

INDEX RULES OF CIVIL PROCEDTJRE

PLEADINGS-Continued Numbered paragraphs, Rule 1.8. Objection to jurisdiction over the person, Rule

1.11, Authors' Comment. Official document or act, Rule 1.9. Order. replication for, manner of making, Rule

1.7. Permissible, Rule 1.7. Perpetuation of testimony, Rule 1.22, Authors'

Comment. Forms, Rule 1.22, Forms 1, 2.

Petitions, Certiorari, contents, supporting papers,

Rule 2.17. Delivery to party upon whom personal

service of summons is served, Rule 1.3. Depositions, before action, Rule 1.22. Mandamus, nature and contents, Rule 2.19. Prohibition, contents, Rule 2.18. Quo warranto, Rule 2.20. Rehearing, Rule 3.16.

Form, Rule 3.16, Form 1. Pleas, abolished, Rule 1.7. Rebutter, abolished, Rule 1.7. Rejoinder, abolished, Rule 1.7. Repetition of counts, prohibition, Rule 1.8. Replication, abolished, Rule 1.7. Reply, necessity, Rule 1.7. Respondent's return,

Habeas corpus, Rule 2.21. Mandamus, Rule 2.19. Prohibition, Rule 2.18. Quo warranto, Rule 2.20.

Responsive, contents, service, time, Rule 1.11. Rule days abolished for purpose of filing, Rllle

1.3. Scire facias, Rule 2.15. Separate statement, Rule 1.8. Service, Rule 1.4. Sham, motion to strike, hearing, relief, Rule

1.14. Sham or false upon failure to sign, Rule 1.5. Signature,

Attorney, party. Rule 1.5. Forms, Rule 1.5, Forms 1-4.

Special damage, Rule 1.9. Striking,

Depositions, failure to attend, Rule 1.31. Discovery, refusal to make, Rule 1.31. Interroe-atories, failure to serve answers,

Rule 1.31. Motion on order, insufficient. redundant,

immaterial, etc., matter, Rule 1.11. Sham pleadings, Rule 1.5.

Supplemental, Authority to file, contents, Rule 1.15. Counterclaim, Rule 1.13.

Surrebutter, abolished, Rule 1.7. Surrejoinder, abolished, Rule 1.7. Technical defenses, abolished, Rule 1.7. Technical forms for seeking relief, etc., abol-

ished, Rule 1.8. Time and place, materiality, Rule 1.9. Undue influence, specifically, Rule 1.9, Authors'

Comment. Unsigned, sham, considered as, Rule 1.5. Verification,

Eliminated, Rule 1.8, Authors' Comment. Necessity, Rule 1.5.

Wilful default, specifically, Rule 1.9, Authors' Comment.

PLEAS Abolished, Rule 1. 7.

POSSESSION Degree or order for delivery of, writ of as

sistance, Rule 3.17. PRELIMINARY HEARINGS

Defenses, Rule 1.11. PRE-TRIAL PROCEDURE

Calendar, Rule 1.16. · Forms, Rule 1.16, Forms 1-5.

Settlement of issues, Rule 1.16. Simplification of issues, Rule 1.16.

PROCEDURE Masters, Rule 3.14.

PROCESS Amendment, Rule 1.15. Constructive service. Rule 1.3.

Still in effect, Rule 1.11, Authors' Comment.

Enforcement of final decree, Rule 3.15. Insufficiency, defense, preliminary hearing,

motion. Rule 1.11 Issuance and delivery for service, Rule 1.3. Masters, Rule 3.14. Mesne and final, Rule 1.12. Motions for issuance of, Rule 1.12. Persons not parties, enforcement of obedience

to order in favor of, Rule 3.18. Proof of service, Rule 1.3. Rule days abolished for purpose of return date,

Rule 1.3. Service, Rule 1.3.

PRO CONFESSO Decree,

Failure to serve answer or other defense, Rule 3.9.

Final decree following, Rule 3.10. Form, Rule 3.9. Form 2. Motion, form, Rule 3.9. Form 1. Motions for entering, Rule 1.12. Proceedings in lieu of decree, Rule 3.11. Service of pleadings and papers on parties

against whom decree has been entered, Rule 1.4.

Sham pleadings, Rule 1.14. PRODUCTION OF DOCUMENTS

Discovery, Rule 1.21, Authors' Comment. Forms. this index. Inspection, copying or photographing, Rule

1.28. Masters, Rule 3.14. Motion, Rule 1.28, Authors' Comment. Subpoena, Rule 1.34.

PROHIBITION Forms, this index. Return, Rule 2.18. Rule to show cause, Rule 2.18.

PROMISSORY NOTE Complaint, form, Rule 1.8, Form 41.

PROOF Certificate of service, prima facie, Rule 1.4. Default, entry, filing, time, Rule 2.9. Pre-trial procedure to avoid, Rule 1.16. Service, notice to take deposition, Rule 1.34. Service of process, Rule 1.3.

PROSECUTING ATTORNEYS Habeas corpus. notice to of application for

writ, Rule 2.21.

PUBLIC OFFICERS Parties, successor, continuance of action by

or against, Rule 1.19.

8515

INDEX · RULES OF CIVIL' PROCEDURE

PUBLICATION . ; · .- Depositions,- de bene esse; Rule -1.33. - •

Service of process, · Rule · 1.3. QUIETING TITLE

Complaint, form, Rule 1 .8, Form.42.-QUO WARRANTO

Attorney General, instituted by, Rule 2.20. Usurpation, elective· local office, · form, :Rule

2.20, Form 1. . - · . Village illegally incorporated, form, Rule 2.20,

Form 2. . . "' REAL PROPERTY

Bond, masters appointed for disposition .. o1. property, Rule 3.14. . .

Enforcement. o.f final dec-ree, Rule ·3.15. lnspecting, measuring,' surveyfug . or'' photo-

- r~ \~· graphing, Rule 1.28. - · · Recei'llers, inventory, Rule 3.26. · ·

~EAL PARTY IN INTEREST ·· · Prosecution of action in name of, Rule 1.17. REBUTTER ...

Abolished, Rule 1.7. RECEIVERS

·· Account, Form, Rule 3.20, Form 1. · Notice and motion· for allowance, form,

· .. J< : ,, . Rule 3.20, Form ·3. ··- - · · · ! Petition for approval, form, Rule 3.20,

Form 2. ? · .. · · · Appointment, report, etc., Rule 3.20. Masters appointed as, bond, Rule 3.14.

RECORD ·· · · Amendment, Rule 1.15. · ·

Cert!orari, petition, support by, Rule" 2.17. Clerical mistakes, correction, Rule 1.38. Correction of clerical mistakes, Rule 1.38. Depositions, oral examination, rRule 1.24.

. r •Evidence excluded, Rule 1.37. ·. · · · · .,.. Incorporation of errors in motion-for new trial,

·· Rule 2.8. Parole agreements between ·parties or attor

~eys made part of, J;tule 1c5. · · .. . Parties, suggestion of death upon, Rule 1.19. : .

1 RECORDING · · · · · " -·

Chain of title, ejectment, RuJe 2.11. RECOUPMENT

• T

Reply, authorizing, Rule .1.7 .. , . REFERENCE r

Issues · to master for findings of fact for use for pre-trial purposes, Rule 1.16.

Master, Rule 3.14. . 1

Motion for order, form, Rule 3.12, Form 1. Order, form, Rule 3.12, Form 2. . ·

REHEARING Petition for, Rule 3.16.

Form, Rule 3.16; Forni ·!. Stay of proceedings, Rule 3.16.

REJOINDER Abolished, Rule 1.7.

RELATION .BACK ·.Amendments to pleading, Rule 1,15.

RELEASE -.. , Affirmative defense, pleading,_ Rule 1.8.

· Enforcement of final decree, Rule 3.15. Form, defense, Rule 1.8,- Forms 62a, 62b.

RELmF _ .. J ;Alte~native-~or several different types, author~

Ity to demand, Rule 1.8. :~;. · r, ·,

REPLICATION • , · · ·:, • Abolished, ;Rule;.l~7 .. <.1r .. " · : ·

ltE~LY '.: ·:. i . · ; · i ~~ ' Affirmativ,e ,deferi~es, ~~,e. 1.1, Authors' Com-

ment · ·· ·.· "' . · :.;; '~ cai;>Hon.~: f'c>r:m;;:Rfr'l'e t:7:' Form 1: .·. I · •

. Cla~~ntea~ing, Rulp . 1",13, . Authors' .. ~om-,., r,.r Cotinterchiitri,1 R'iiie ; 1.'7 ~ Authors' conimeht.

Form, Ru~e }.&,)!'o~ 69, . . , : ' · REPORT . .. _.,. I • • ·'· ,,.,,._ • • '

,2:·· c ' Findl?gs; -p!lysical or. mental examination, parties or property, Rule :l.29; ·1

:- .. Masters; ·Rule ·3;14. · • ·· ,. . .. · ~ Ey~dencei filing,with;:•Rule 3;14.

E1lmg and 'notice :of; Rule 3.14: .!-: : . .: Receivers, Rule 3.20, · · · · ·, REPRESENTATIVES . . . . '.

Parties, suits ·by or agp.insH ri:fants or incompe-tent p~r~~ms, Rule, 1.17. 1

• -

Substitution· of part\~, ino~ion, ~ule. 1.19. RES JUDICATA .. '

Affirmative defense; pleading; Rule 1.8. .;Form, "de.fense; Rule· L8,- Form 63. ·

RESCISSION ·: : . . . . . . . . Contract for fraud, co!ppl~int, form; .~uie 1.8,

Form 43. , . .. , . .. . . · . . ·· '

RETURN · Attachment, writ of, Rule 2.10: r

Depo~itions de bene esse, Rule 1.32. ' . r ' Habe~s 'curpus, Rule 2.21. · , · · .

... :.Forrn,'Rule 2.21, Form 3. , Mandam~s, form, Rule 2.19, Form 4~ Non est mventus, eriforcemei:l.t of final 'decree

Rule 3.15: ' · · • . :· · · · ·• • , , , ,,Scire fat;ias, , . . . ' ' · · ·j~

.. . : .Agamst ·garmsheei :Rule .-2.12. Time, Rule 2.15 .

;:ser irke, :. · · .~: · · Equity, form, Rule 1.3, Form 2. Law, form, Rule 1.3; Form 3.

Summons•· ' : r.. · ' ' · · · · Additi~nal ·-when . ·sfunmons returned not

,_i .. r ·-~~3~<:\lted or i.nlPfOP.erly executed; 'Rule

' Nonr esident defendant, ·Rule 1.3. RULE DAYS '" . . . . ,: 1 .r;:Abo~ition_. for purpose of return date. of proc

. , : 1 ':..~ss ·:and filing pleadings, Rule 1.3. Special statutory · proceedings, Rule 1.3, Au-

thors' Comment. · · '

scui:E F'AciA.s· . . .. Garnishm!':nt, Rule 2.12. : · . Returnal:;>fEI; time, Rule 2.15.

SCOPE , . ; , , : 19.54 R~les ~f . Civil I>roceci.ure, Rule A.

SEAL Depositiori; Rule 1.24· . . · r -_, •

· De bene e!!Se; Rule 1.32. . . . Errors and irregularities; Rule 1;26.

Subppena, RpJ.e 1.34: ... ~

SEPARATE TRIALS

.. r

:ir·Joindei:, '~auses 'which c.a. n_riot be_ J·oined, Rule 3.7. . •,

sE'ooEsTR~Tio:N · ·· ] Enforcement,

Final decree, Rule 3.15. . ·:r Form, Rule 3.15, Fohn ·2· . . ··. ,. · ... ,·

8516

INI>EX=.ROLES OF CIVIL PROCEDURE

SERVICE '·· .•. : .. . . , '· .'- ·Admission .. of facts .. and .genuineness of. docu-

ments, request for, . Rule .1.30, Answer, Rule. l.fl. ' . . . ·. . .. . Certificate ot service, Rule '1.4. . . . . • Certiorari, peti~~on and transcript, Rule 2,17. Compensation,. statutory, incr-ease -prohibited,

Rule .1.3. .. .... 1 , _ .. ... . , . . ...... .

Complaint, nominal· .parties, Rule 3.1: .. . Constructive, Rule: 1.3. . .. . .. ..

Still in effect,- Rule 1.11, -Authors' Com. ment • . . .. -

Demand, jury trial;. Rule 2.1 • . . Depositions,

Notice of taking, Rule 1.21. Before actJc;m, ;Rule 1.22.

Filing, delivery tb· officer; ~ Rule L4, 'Authors' Comment . . ,.,. ,. , ' · · ·

Initial pleading~; · liufe 1.3. Interrogatories, . . .

Depositions · Of 'witnesses, Rule 1:25. Parties, Rule 1,27, ,·, · · ' ... · ·

. Jury triq.J,. dem,anp,;··R'Ule -2.1. · ·Mail; additional time,~ Rule 1.6. Method of, subpoena', RUle 1.34: ·· Motions, · · · ·· · '· · .. · · · · ·

Continu.aric~, Rule 2.4. · · Substitution ·of ·p·· arties; Rule 1.19. '!

:Time, ~4le 1K . · . · · · · · · · NeW"tti<tl; 'Rule 2.8:

Summary jl,ldgment cir decree, ·;Rule 1.36. .. .. . . . .. .. .. . . . . . Nonresident defendant, Rule 1.3. ; · .: Notice of hearing, substitution of parties; ~Rule

1.19. r. •": ·.'•. '. i -:: r:: Objections, r.

Depositions; . errors and ·irregularities in notice for taking, Rule 1.26.

Interrogato,.ri~s, to :par~ies.k ~ule, 1.27 . . Persons authonzed to make, .ttule 1.3.

Subpoena, Rule 1.34. · Petition, . . : .. : . ,

Perpetuation of testimony, Rule 1.22, Au"thors' Comment. .- .

Rehearing, Rule 3.16. ' . . . Pleadings, entry of default o_n :failure, Rule 2.9. Pleadings and papers, necessity, method, filing,

etc., Rule 1.4. Process, Rule 1.3. \' : , ··

Insufficiency, defense, · preliminary hearing, motion, Rule 1.11. ~ ·

1 r ·~ · ·.Officers autllorizetl;. Rule: L3: Publication,

, . Deposition, .. no~ice, t.o take, Rule 1.22. · ·Process, Rule t.3. - · . · . . · · ··

Rehearing, petition· for, Rule 3.16. · S,U:bpoena; Rul¢ J:34. · · ·

• :.- ,_,...... !, ' · :;. •

SET-OFF Reply,. , '\uthor~zin:g,)1ule 1:7~ .

SEVERAL DEMANDS i c.

Parties to suits involving, Rule 3.2; SHERIFFS<:·:.:/!;/\ ,i!:, L 'c.:. ·· ' ·

Costs, form, Rule 1.3, Form 4. . . . Masters, process issued by directed , to, "Rule

3.14, 1 "'• r: 1:- < :• ' '' ·'•

· IJ . \ ~~turn, SU:ql!I!9!1S, Rule 1-.3. · ,.

SIGNA'I'Q;B,~ : ,, 1 , , .. !;r .. :: '. , " "'- .. ''·· .AdiriissiCi:iis,- ':Rt.iie ~i'.ao; .,Authors•:· corruD.ent. Depositions; • :: .• , ··, '~ ·. · , ;: ' · .. h . · : \ ..

Errors· ang: irtegularities; Rule. 1.26; .I Written interrogatories, Rule L25? Authors'

!.Comme.qt.-... J • • \:; J,:·::r;: ... :.':: . :.! ,.::i'J

SIGNATURE-Continued Pleadings and motions, Rules 1.5, 1.7.

_Forms, Rule 1.5, Forms 1-4. Rehearing, P,etition for, Rule 3.16.

SPECIAL DAMAGES. Pleading, forms, Rule 1.9, Forms 11, 12.

SPECIA:L MASTERS Appointment, etc., Rule 3.14. Hearing;. Rule 3.14 .. Powers and duties, Rule 3.14 .

SPECIAL S'l'ATU'I'ORY PROCEEDINGS .. ·· " Applicability of 1954 7-'Ules, Rule A.

Forin, content, procedure and time for pleading, e<'ception, J;tule A. ..

... :rEntry on. common law .doc~et, R~le 1.2. Form, content, procedure and time for plead-

• . . : ing, exception, Rule A. Rule days, Rule 1.3, Authors' Comme:r;1t.

SPECIFIC PERFORMANCE Conveyance of land, -complaint, form, Rule 1.8,

::: . .. Form 44. · ' Eriforcerrierit of final decree, Hule 3.15.

STATE Counterclaim against, Rule 1.13.

STATEMENT Chain of title, ejectment action, Rule 2.11.

STATUTE OF FRAUDS · . Affirmative defense, pleading, Rule 1.8.

· L Form, defense, Rule 1.8, Forms 64a, 64b.·

STATUTE OF LIMITATIONS · ·. · · Affirmative defense,. pleading, Rule 1.8.

Form, defense, Rule 1.8, Form 65. Substitution of parties, Rule 1.19, Authors~

Comll1ent.

STATUTORY PROCEEDINGS See Special Statutory Proceedings, this inde~

STAYS Dlsc~very, refusal to make, stay because of,

·Rule 1.31. : New·. trial, motion, Rule 2.13, Authors' Com

ment. Rehearing proceedings, petition for, Rulei,3.16. Stay writs, Rule 2.22. '

·' ' STENOGRAP!iEJ:tS .

Depositions, oral examination, record, Rule ;n r:": .. : 1.24 . .

STIPULA TI(JNS Deposition; · . ;, ·

Oral examination, form, Rule 1.23, Form 1. ;! ,_·. . Written ·interrogatories, form, Rule 1.23,

· Form-2. · · ·· Dismissal, ,_form, Rule. 1.35, Form 2. Enlargement of time, ·

,:Form, Rule .. l.6, Form 4 . . "··. . Motion, form, Rule 1.6, Form 3. ,

· ·Order 'approving, form, Rule. 1.6, Form 7. Parties, :. , . · · . , . ,,

Depositions, taking, RUle' 1.23. . Di1>niiJisal; Rule 1.35. - .. ' :· Waiver-of 'signing of -deposition. byf wit-

ness, Ruler1,24.- . ' · · j . l'tef~~ce. to.master, ·form, Rule .3.14, Fo~ 1. ,.( Waiver of filing 'deposition, signed, Rtile ' 1.24, -w:c"::: '::o;:-~'l:tth<?~s: f~?~Il1e~~.:- ... : · ·- ,~.;:::

Waiving jury trial, form, Rule 2.J, ~prms 4, 5.

85l:'l


STRIKING Motion to strike, Rule 1.11.

Answer, failure to answer interrogatories, Rule 1.31, Form 6.

Forms, Rule 1.11, Forms 4, 5. Parts of depos"tion de bene esse, motion, form,

Rule 1.32, Form 3. Sham or false pleadings, Rules 1.5, 1.14.

SUBPOENA Attendance of witnesses, Rule 1.34. Contempt, failure to obey, Rule 1.34. Depositions,

Commissioners appointed in this state by courts of other states, powers, etc.,

Rule 1.34. Failure to serve, Rule 1.24. Necessity, Rule 1.31, Authors' Comment. Taking, Rule 1.34.

Documents, books, tangible things, etc., Rule 1.34.

Forms, this index. Issuance, Rule 1.34. Place of examination, Rule 1.34. Production of documents, evidence, Rule 1.34. Service, Rule 1.34. Witnesses, attendance, Rule 1.34.

SUBPOENA DUCES TECUM Discovery distinguished, Rule 1.34, Authors'

Comment. Forms, this index. Inspection of document, Rule 1.28, Authors'

Comment. Notice of motion to quash, form, Rule 1.34,

Form 3. Order quashing, form, Rule 1.34, Form 4. Production of documents, Rule 1.34, Authors'

Comment. SUBROGATION

Complaint, form, Rule 1.8, Form 45. Parties to action, Rule 1.17, Authors' Com

ment. SUBSTITUTION OF PARTIES

Assignee, order, form, Rule 1.19, Form 10. Death of party, Rule 1.19.

Motion, form, Rule 1.19, Forms 1-3. Motion to dismiss, form, Rule 1.19, Form 5. Order, form, Rule 1.19, Form 4.

Officer, Rule 1.19, Forms 11-13. Receiver,

Motion, form, Rule 1.19, Form 8. Order, form, Rule 1.19, Form 9.

SUITS IN EQUITY See, also, Actions at Law, this index

Generally, Rules 3.1-3.20. Applicability of rules, Rules B, D. Class suits, effect, Rule 3.6. Decree pro confesso,

Final decree, setting aside default, Rule 3.10.

Proceedings in lieu of, Rule 3.11. Default, decree pro confesso, Rule 3.9. Enforcement of final decrees, Rule 3.15. Injunctions, notice, allegations of complaint,

Rule 3.19. Interventions, Rule 3.4. Joinder of causes of action, Rule 3.7. Joint and several demands, Rule 3.2. Masters, Rule 3.14. Nominal parties, Rule 3.1. Process in behalf of and against persons not

parties, Rule 3.18. Real party in interest, Rule 3.3, Authors' Com

ment.

SUITS IN EQUITY -Continued Receivers, appointment and report, Rule 3.20. Rehearings, Rule 3.16. Return of service, form, Rule 1.3, Form 2. Summary judgment, Rule 1.36, Authors' Com-

ment. Summons, form, Rule 1.3, Form 6. Time cause deemed at issue, Rule 3.8. Time for taking testimony, Rule 3.13. Trials and evidence, Rule 3.12. Trustees, representing beneficiaries, Rule 3.3. Trusts of will, suit to execute, Rule 3.5. Writ of assistance, Rule 3.17.

SUMMARY JUDGMENT OR DECREE Affidavits,

Bad faith, Rule 1.36. Form, Rule 1.36. Unavailable, Rule 1.36.

Claimant, Rule 1.36. Defending party, Rule 1.36. Forms, this index. Interrogatory, Rule 1.36. Motion, failure to state a claim, Rule 1.11,

Authors' Comment. Motion and proceedings thereon, Rule 1.36.

Case not fully adjudicated on, Rule 1.36. Dismissal, effect, Rule 1.35.

New trial, Rule 2.8, Authors' Comment. Opposing party entitled, Rule 1.36, Authors'

Comment. Sham pleadings, Rule 1.14.

SUMMONS Form,

Chancery, Rule 1.3, Form 6. Law, Rule 1.3, Form 5.

Issuance and service, Rule 1.3. SUNDAY

Time, computation, Rule 1.6. SUPPLEMENTARY PROCEEDINGS

Available, Rule 1.40, Authors' Comment. SURETY

Attorney not to be, Rule 1.5. SURREBUTTER

Abolished, Rule 1.7. SURREJOINDER

Abolished, Rule 1.7. SURVIVORS

Ejectment action, decedent's right, Rule 2.11. TERMS OF COURT

Continued existence or expiration, defect on court's power, Rule 1.6.

Time, unaffected by expiration, Rule 1.6. Trial calendar, setting cases for, Rule 2.2.

THIRD PARTIES Attachment, form, Rule 2.10, Form 6. Counterclaim, motion, form, Rule 1.13, Form 1.

THIRD PARTY CLAIM Motion to strike, Rule 1.11, Authors' Comr.1ent.

TIME Additional,

After service by mail, Rule 1.6. Answer interrogatories, Rule 1.31, Au-

thors' Comment. Amended pleading. response to, Rule 1.15. Answer, service, Rule 1.11. Attachment returned, Rule 2.10. Cause deemed at issue, Rule 3.8. Certiorari, hearing, Rules 2.16, 2.17. Commencement of action, Rule 1.2.

8518


TIME-Continued Computation, Rule 1.6. Depositions,

De bene esse, taking, Rule 1.32. Oral examination, Rule 1.24. Pending action, Rule 1.21.

Discovery, inspection, copying, photographing, documents and things, Rule 1.28.

Enforcement of final decrees, Rule 3.15. Enlargement, Rule 1.6.

Taking testimony, Rule 3.13, Authors' Comment

Executions, issuance, Rule 2.13. Garnishee's answer, traverse, Rule 2.12. Habeas corpus, hearing, Rules 2.16, 2.21. Instructions to jury, Rule 2.6. Interrogatories,

Parties, service and objections, Rule 1.27. Written, depositions, witnesses, service,

Rule 1.25. Mandamus, hearing, Rules 2.16, 2.19. Masters.

Exception to report, Rule 3.14. Proceedings on reference to, Rule 3.14.

More definite statement, pleading3, Rule 1.11. Motions,

Continuance, Rule 2.4. Hearing on, Rule 1.6. Judgment or decree on pleadings, Rule

1.11. Original papers, filing, Rule 1.4. Pleading, Rule 1.9. Production of documents, Rule 1.28, Authors'

Comment. Prohibition, hearing, Rules 2.16, 2.18. Quo warranto, hearing, Rules 2.16, 2.20. Rehearing, petition for, Rule 3.16. Reply to counterclaim, service, Rule l.ll. Service,

Jury trial, demand for, Rule 2.1. Order of court, Rule 1.11.

Stay writs, hearing, Rules 2.16, 2.22. Summary judgment or decree, motion for,

Rule 1.36. Taking testimony, Rule 3.13.

Motion, form, Rule 3.13, Form 1. Order, form, Rule 3.13, Form :l.

Term of court, unaffected by expiration, Rule 1.6.

TITLE Ejectment, chain, sufficiency, testing, Rule

2.11. 1954 rules of civil procedure, Rule A.

TRANSCRIPT Certiorari, Rule 2.17.

TRANSCRIPTION Depositions, errors and irregularities, Rule

1.26.

TRANSFER OF ACTIONS AND CAUSES Demand exceeding jurisdiction. Rule 1.13. Jurisdiction, demand exceeding, Rule 1.13. Law or equity action erroneously begun, Rule

1.39. Motion, form. Rule 1.39, Form 1. Order, form, Rule 1.39, Form 2.

TRANSFER OF INTEREST Action, continuance by or against original

party, Rule 1.19.

TRANSMISSION Depositions, errors and irregularities, Rule

1.26.

TRESPASS Complaint, form, Rule 1.8, Form 46.

TRIAL Case called for, disposition, Rule 2.3. Counterclaim, separate trials, Rule 1.13. Defenses, asserting at trial, Rule 1.11. Directed verdict, new trial, etc., order granting

or denying, objection or exception, necessity, Rule 2.6.

Exceptions unnecessary, Rule 2.6. Instruction,

Adverse, exception unnecessary, Role 2.6. Jury, filing requests, conference, objec

tions, Rule 2.6. Notice, actions at law, form, Rule 2.2, Form 1. Setting case for, Rule 2.2.

TRUSTEES Parties, Rule 1.17. Prosecution of action in name of, Rule 1.17. Representation of beneficiaries, Rule 3.3.

UNDUE INFLUENCE Pleading specifically, Rule 1.9, Authors' Com

ment.

VENUE Dismissal of action for improper venue, Rule

1.35. Improper, defense, preliminary hearing, mo

tion, Rule 1.11.

VERDICT Directed,

Motion for, Effect. Rule 2.7. Joinder with motion for new trial,

Rule 2.7. Setting aside, reservation of decision

on, Rule 2.7. Order granting or denying, appeal, objec

tion or exception, necessity, Rule 2.6. Setting aside, reserved decision on motion for

directed verdict, Rule 2.7.

VERIFICATION Motion to strike sham pleadings. Rule 1.14. Petition for perpetuation of testimony, Rule

1.22. Pleadings, Rule 1.5. Rehearing, petition for, Rule 3.16.

WAIVER Affirmative defense, pleading, Rule 1.8. Counterclaim, Rule 1.13, Authors' Comment. Defenses and objections, Rule 1.11. Depositions,

Errors and irregularities, Effect, Rule 1.26. In notice for taking, Rule 1.26.

Examiner, parties or property. Rule 1.29. Filing deposition, Rule 1.24, Authors' Com

ment. Jury trial,

Demand for, Rule 2.1. Stipulation, form, Rule 2.1, Forms 4, 5.

WILLS Parties to suit to execute trusts of, Rule 3.5.

WITHDRAWAL Jury trial, demand for, consent of parties, Rule

2.1.

WITNESSES Adverse party, leading questions, contradic

tion, impeachment. Rule 1.37. Continuance on ground of non-availability,

contents, Rule 2.4.

8519


WITNESSES-Continued Contradiction, adverse party, Rule 1.37. Corporate officers and agents, examination,

scope, Rule 1.37. '· Cross-examination,

Adverse party, Rule 1.37. Depositions, Rule 1.21. Scope, Rule 1.37.

Deceased, deposition, admissibility, Rule 1.21. Deponent, witness for party introducing depo

sition, Rule 1.21. Depositions,

Attendance, Compelling, Rule 1.21. Failure, Rule 1.24. .

Competency, objection, effect, Rule 1.26. De bene esse, Rule 1.32.

Oaths, Rule 1.32. Examination on in proceedings before

masters, Rule 3.14. Oaths, Rule 1.24. Objections to competency, Rule 1.26. Oral examination, submission to, changes '

signing, Rule 1.24. ' Written interrogatories, procedure Rule

1.25. . ' ·, Examination,

Depositions, Rule 1.21. Changes, signing, Rule 1.24.

On oath in proceedings before masters, Rule 3.14.

Scope, Rule 1.37. Expert, limitation, pre-trial procedure, Rule

1.16. Hostile, leading questions, Rule 1.37. Impeachment,

Adverse party, Rule 1.37. Disposition, Rule 1.21. Hostile witness, Rule 1.37, Authors' Com

ment. Perpetuation of testimony, examination oral

or written, Rule 1.22. ' Privilege, waiver, physical or mental exami

nation, Rule 1.29. Subpoena for attendance, Rule 1.34.

!

WRITING Depositions de bene esse, Rule 1.32. Masters, examination taken down in, Rule

3.l4. '. Motion, requirement, Rule 1.7, Authors' Com

ment. Wilrrs

Amendil).ent, . Mandamus, Rule 2.19.

. . . . Quo warranto, Rule' 2.20. · ·Assistance,

Affi?-avit, form, Rqle 3.17, Form 2. Dehyery of possession, Rule 3.15, Authors'

Comment. '· Enforcement of decree or order, Rule 3.17.

Form, Rule 3.17, Form 1. Purc:haser, ·

. . Affidavit, form, Rule 3.18, Form 2. · · Form, Rule 3.18, Form 1.

Attachment, Endorsement, acts -of officer, Rule 2.10. En!orcement of final decree, Rule 3.15. _Failure to attend taking deposition, form

Rule 1.34, Form 10. · ' · Form, Rule 2.10, Form 3.

Certior:=tri, Rules 2.1(i, 2.17. Execution, Rule 2.13.

Ejec:tm.ent, Rule 2.11. ·· . ~nfo;rcement of final decree, Rule 3.15.

Fieri facias, Rule 2.13. Habeas corpus, Rules 2.16, 2.21. Mandamus, Rules 2.16, 2.19. ·Peremptory,

Mandamus, Rule 2.19. Quo warranto, Rule 2.20.

Possession, ejectment, Rule 2.11. . Fo_rm, Rule 2.11, Form 3

Prohibition, Rules 2.16, 2.18. · Q~o war~anto, Rules 2.16, 2.20. Serre facias, returnable, time Rule 2 15 Sequestration, ' · '

Enforcement of final decree, Rule 3.15; Form, Rule 3.15; Form 2. '

Stay writs, Rules 2.16, 2.22.

...

FLORIDA APPELLATE RULES

Table of Contents ·r

PART I. APPLICATION, DEFINITIONS AND CITATION

Rule Page 1.1 Application . . . . . . . . . . . . • • . . • . . . . • • . . . . . • 3524 1.2 Citation . . . . . . . . . . • . . . . • • . . . . • . . . . • • . . . . 3524 1.3 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . • . • . 3524

"Attorney of Record" "Clerk" "Commission" or "board" "Court" "District Court" "Legal Holiday" "Lower Court" "Rendition"

1.4 Effective Date: Repeal . . . . . . . . . . . . . . . . . . . 3524

2.1

2.2

PART II. THE COURTS

The Supreme Court . . . . . . . • • . • • . . • • . • . . . 3524 a. Internal- Government

( 1) Exercise of Powers and Jurisdiction ( 2) Chief Justice ( 3 ) Administration ( 4l How Assignments of Judges Made ( 5 Jurisdiction of the Supreme Court ( 6 Judges Shall Devote Full Time to

Judicial Duties b. Clerk

( 1) Clerk ( 2) Office ( 3 ) Custody of Books, Records and Seal ( 4 ) Minutes of Proceedings ( 5 ) Docket of Cases ( 6 ) Filing fee ( 7 ) Issuance of Mandate, Recordation and

Notification ( 8 ) Return of Original Papers

c. Librarian ( 1 ) Personnel ( 2 ) Custodian ( 3 ) Use of Library ( 4 ) Library Hours ( 5) Books

d. Marshal ( 1 ) Appointment ( 2 ) General Duties ( 3 ) Custodian of Building and Grounds

e. Terms of Court ( 1 ) Regular Terms ( 2 ) Continuance of Cases

f. Sessions and Adjournments ( 1 ) Open Sessions ( 2 ) Hearings ( 3 ) Holidays ( 4 ) Recesses and Adjournments

g. Advisory Committee on Rules

District Courts of Appeal . . . . . • • . . • . • . • • • • 3528 a. Internal Government

( 1) Exercise of Powers and Jurisdiction ( 2) Chief Judge ( 3) Assignments of Judges ( 4 ) Jurisdiction

b. Clerk ( 1 ) A:Q_pointment ( 2) Office ( 3 ) Custody of Books, Records and Seal ( 4 ) ·Minutes of Proceedings

Rule Page 2.2 District Courts of Appeal - Continued ·

( 5 ) Docket of Cases ( 6) Filing Fee ( 7 ) Issuance of Mandate, Recordation and

Notification- Written Opinions · ( 8 ) Return of Original Papers ( 9 ) Additional Duties

c. Marshal · ( 1 ) Appointment ( 2 ) General Duties ( 3 ) Custodian of Building and Grounds

d. Terms of Court ( 1) Regular Terms ' ( 2 ) Special Sessions ( 3 ) Continuance of Cases

e. Sessions and Adjournments ( 1 ) Open Sessions ( 2 ) Motion Days ( 3 ) Oral Argument Days ( 4 ) Saturdays ( 5 ) Recesses and Adjournments

2.3 Attorneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3528 a. Practice by Local Attorneys

3.1 3.2

3.3 3.4

3.5

3.6

·b. Practices by Foreign Attorneys c. Clerks and Secretaries to Justices or

Judges Not to Practice d. Attorneys as Agent of Client

( 1) Service Upon Attorney ( 2 ) Withdrawal of Attorney ( 3 ) Additional Attorneys

PART m. PROCEEDINGS GENERALLY Nature of Proceedings .................... 3529 Commencement of Proceedings . . ....... ~ . . 3529 a. Method b. Time c. Contents of Notice d. Effect of Filing Notice e. Notice to Be Recorded , f. Payment o~ Costs by Original Plaintiff Basis of Hearing and Determination • . . . . . . . ,3529 Filing and Service of Papers . . • . . . • • • . • . . • 3529 a. Filing b. Service ( 11 Upon Whom Made

(2 How Made ( 3 Effect of Mailing ( 4 Proof of Service ( 5 ) Copies to Be Served

Assignments of Error . . . . . . . • . . . . . . . . . . . . 3530 a. Assignments of Error by Appellant b: · CroSs Assignments of Error by Appellee c. Contents d. Extension of Time Record-on-Appeal . . . . . . • . • . . • • . . . . . • . . . • 3530 a. What Constitutes b. Duty to Prepare: Enforcement of Duties c. Preparatjon by Appellant .d. Directions to Clerk and Reporter

· ( 1 ) Directions to Clerk ( 2 ) Designation to Reporter

e. Reporter's Transcribed Notes f. Original Record

( 1 ) Contents and Transmittal ( 2 ) Form in Which Papers Transmitted ( 3 ) Preface, Index

g. Transcript of Record ( 1 ) When Used ( 2 ) Contents and Form

8521 : ; ' • r ' ' ' • •

FLORIDA APPELLATE RULES Table of Contents

Rule l'uae S.6 Record-on-Appeal -Continued

h. Stipulated Statement i. Fil111 .~ . Us" and S<·rvice of Copies

( I I Filing auJ Usc ( 2 ) St·n·ice of Copy of Transcript ( 3 ) Ser\'ke of Copy of Hcportt:r's Tran

serihed 1\otl'S ( 4 ) Sen·icc of Copy of Index

j. Time for Performance of Acts Relating to Ht•conl-on-A ppt·al ( l ) Ori).(inal Time Schedule

IJ1redion' to the Ch·rk Cross-D ircl'lions to the Clerk D•·si).(nalions to the Hcpnrh·r Crnss-J>,·signations to tlw llt"porter Ht·porlt•r\ Transt·r!hed :\oh·s Scn·il't' of l.opies of Hepurter's Tran

Sl'r i hed ~ nh's Compldion and Filing of Record-on

Appt•al Sc-n·ict· nf n Copy of the Transeript Trans111ittal of tlw Ht•t·tml-on-Appeal

( 2) Tinw Ch.m)!cs and E~l<'u,iuns k. Rt·t ·onl lor l'n·li111inary lleariug 1. Corn•din!! or l.o111pl..ting

m. Ht'lnrn In Lower Court n. Certif 1cates

8.7 Briefs-Form, Contents and Filing •••••••••• 3532 a. Appl'llant's l\l.t in Brief, Sen·ice b. ApJll'llee's Brid, Sl'rvice c. A pp..llanl's Hl'ply Brie f. Service d. E 'h'nsion of Time for Fihug e. Stvle of Briefs

( i ) l'aper ami Size ( 2 ) Type ami Spacing ( 3) 13 ind in)!. Titles ( 4 \ C:o\'l ·r nl Eal'h Rrief ( 5) Length of Briefs

f. Cnnlt·nts of Appellant's Brief ( I l CitatiOn of Authorities ( 2) lndt'\ ( =~ ) Stah'mrnt of the Case ( 4 l Ar)!ulnt·nt ( 5 ) Appt ·ntlix

g. Contt•uts of Appe-llee's Brief ( I ) Sta!<-nll'nt of Case ( 2) Sta lt·tnt ·ut of Fads ( :) ) Ar!!IIIIH'Ilt ( 4 \ Appt•utl ix

b. Jl .. pty Brid of Aprelbnt i. l 'oiuts i\ot Arg•u·t :\ rc Ah:mdoned j. \\ 'ltt ·u Appt·ntlices Unnect:ss .. ry k. Atuicus Curiat:

8.8 Power of Lower Court . • • • • • • • • • • • • • • • • • • 3!'Jf34 8.9 ~lotions .••.... . ..• • •••.•••••••• • • •• •••• 35J4

a. Use b. \l<>tion to Quash Appeal c. Time For d. \\"lwn Heard e. Briefs and Argument f. Stay of I'roeecdings g. Evidence in Support of Motions

8.10 Oral Arguments ..•••••••••••••••••••••• • 3534 a. A pplil'al inn For b. Tinw Allnwc-tl c. P;~rtidpatinn hy Attorneys d . Dutv of Attnrnt•vs e. \.ourt \l :•y llt·<(tiire, or Oispen~e with.

Oral An!lllllf'llt f. Time and Place of Oral Arguments g. Oral Argument, heard by Supreme

Court en bane 8.11 Parti•·~ . . . . • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 3535

a. Generally

Rule Page 3.11 Parties - Continued

b. Jnindl'r in AppL·al c. Vismissal of Parties d. Attomcys ant..! Guardians Ad Litem

lldow a~ Such e. Dt:ath of Parties and Substitution

I I ) Voluntary Suhstitutiou ( 2) In' oluutary Substitution ( J) l'ublintliou of Onl•·r ( 4 ) Dismissal or 1\e\'h·al ( 5) 1\c\'in>r Uuut·t·essary ( 6) Construdi vc Sen ice

3.12 Advancement of Causes •.•••••••••••••••• 3536 3.13 J).smissal of Caust:s . . . . • . . • • . . . . . . • • • • • • • 35JI1

a. Vismissal of Caust•s \\ 'lwn Sl'ltlt·d b. \ nlnntary Dismissal ol Appeals c. Clerk 's Out)

3.14 Hehearings . .....••.•......•••••.••••••• 3536 a. T mtt• for b. Contents of Petition c. Sen·it-e d. Hole Violation e . O nly Om: l'l'lilion Allowed f. Further Pleadings

3.151\landate ...........•.•••••••••••••••••• 3536 a. Issuance nf \l:tmlate h. E~tensiou of Time for Issuance of \landate

3.16 Taxation of Costs ....•.....••••••••••• • •• 3537 11. C:mt of 1\ecnrt..l-on-Appt•al b. \\ 'l.crc Taxed c. n,., it·wahlt· Bv Pc·tition d. l'l'lit•on aut! \:utict: - Requisite Of e. Attoruey's F•·es

3.17 Penalties for Violation •••.•••.•••••..••••• 3517 3.18 Computation of Time . . . . . • . • • • • . • . . . . . • . 35;37

PART IV. SPE\.1 ·\1. A '\'D F.'\'TRAOHDI~ARY PHOCEEDI:'I:CS

4.1 Review of Administrative Boards and Agencies 3517

4 " Interlocutory Appeals • . . . • • • • • • • • • • • • • • • • 3537 a. Applit ·atiou b. T inw for Filing <'. Di'l""itinn d . flpc·ord-on-Appeal e. Briefs f. ll earing and Disposition g . Oth•·r Hules

4.3 Bond Validation ProccC'dings •.•••.•..••••• 3538 4.4 App<'als in l'rnhatP and Cuanlian,ftip PrOl'red-

ings and Cases lnvolvin~ Estates of Infants •• 3538 4.5 Extrnnrclinnrv \Vrits· l\lantbmns. Cl'rlinrari

l'rohihition. Quo \Varranto, llalwns Corpus' and Stav Writs .....•...•••••••..••••• :. • 3538 a. C:t:nera llv

( 1 ) \\l,·c·n TTenrd ( 2 ) Writs lbisinq Issue of Fact Will

l'\ot Re llt•:ml ( 3 ) Rrit·f St·r\'t•cl on Respondent ( 4 ' Oral Arguments ( .S ) 1\otke

b. ~lanclmnns ( I l \\ 'lwn Entertained ( 2 ) Petition ( 3) lssuanl'e of Altf'rnative "'rlt or Rule ( 4 ) Rt·sponclent'• Tldurn and Brief ( !') ) Rt•lator's Rl'ply Brief

c. Certiorari ( 1 ) Pt>tition to Ill' Supported by

Transl'ripl ancl Brit •f ( 2 ) H('spnnclf'nl to R·· Sc•rvPcl "'ith

PPtitinn. Transeript ancl Brit•f ( 3) Respondent's Brief-When Filed

8522

FLORIDA APPELLATE RULES Table of Contents

Rule Page 4.5 Extraordinary Writs, etc. - Continued

( 4 ) Reply Brief ( 5 ) Oral Ar!tmnent ( fl l From District Court to Supreme Court

d. J>rohibition ( l ) Petition ( 2) lssuan<'e of Rule ( 3 ) Rcspondl•nt's Retnm and Brief 14) Relator's Heply Brief

e. Quo \Varranto ( I ) By Whom Instituted ( 2 ) Governed by Rult!s on Mandamus

f. llabeas Corpus ( I ) Issued by. \\'hom ( 2 ) !'l:otict! to Attorney Cenerul ( 3 ) Respondent's Rdurn ami Brief ( 4 ) Applicant's Brief ( 5 ~ Respondent's Reply Brief ( 6 ) Final Disposition

g. Constitutiom1l Writs ( I ) Aftt!r Appeal and Notice ( 2 ) Final Adjudication on Merits, when

4.6 Certified Questions • . . . . . . . . . . . . . . . . . . .. . 3540 a. \\ 'hen Certifit·d b. Limitation~ On c. Coutt!nts of Certificate d. Prt!paration of Certificate e. Costs ol Certifkate f. Briefs and Ar~ument g. Oral Argument

4.7 Appellate Review by Circuit Court .. • ..•... 3541

PART V. SUPERSEDEAS 0:'\l APPEAL

15.1 Supersedeas Oiscr,..tionarv Wlwn Appeal Is from Interlocutory Order . . . . . . . . . • • • . . . 3541

15.2 \\'lwn Appeal Is From Final Judgment or Decree . . . . . . . . . . . . . . . . . . . . . . . . . • • . . . 3.'541

5.3 Supersedeas as of Right . . ....•.•.. • ...... 3541 a. ~lon•·y Judgmt>nt or Del'Tl'<' b. Probate and Guardianship Proct"t"rlings and

Cast'S lnvol\'ing E~tates of · lulauts 15.4 Supersedeas or Stay of Industrial

Commission Ord.:r . . . . . . . . . . . . . . • . . . • • • • 3541 15.5 Motinn and Order for Supersedl·as to Stay

Final Judgment ........ . ...........••. • • 3541 5.6 "Good and Sufficient Bond" Defined • . . . . • . 3541 5.7 Bond When Judgment Is for Rel·overy of

.Money Not Secured ..... . ....•.........• 3541 5.8 Bond When J udb'lTJent Is for He('Qvery of

!\'Ioney Otherwise Secured . .........•....• 3541 5.9 Bond When Judgment is Otlwr

Than for !\Ioney . . . . . . . . . . . . . . . • . . . . . . • . 3542 5.10 Review of Order When Arbitrary or Unreason-

able . . . . . . . • . . . . . . . . . . . . . . . . . . . . • . . . . • . 3542

5.11 Judgment Against Surety • . • ..•••••..••••• 3542

PART VI. CRIMINAL APPEALS 6.1 Applicability of Part VI ............•..•.• 3542

6.2 When Appeal to Be Taken by Defendant • • • 3542 6.3 When Appeal to Be Taken by the State • . • • • 3542 6.4 How Appeal Taken; Notice of Appeal • • • • • • 3542 6.5 Notice to Counsel for State When Defendant

Appeals . . . . . . . . . . . . . . • . . . . . . . . • • . . . . • • • 3542 6.6 Notice to Defendant When State Appeals . • • 3542

a. Service b. Service Under Section 924.07 (4), Florida

Statutes

Rule Pal(e 6. 7 Assignments of Error and Directions to Clerk 3543

a. By Appellant b. By Appdl.:e c. Cross Assignments of Error W'hen State

Files :'1/ntil·e of Appeal UnJcr Sedion 9.2-1.07 (4), Floricla Statutt's

d. Additional Directions by Appellant Upon the Filmg of Cross Assignments by the State

e. Extcu~ion of Time for Filing f. Stipulation as to Contents of Appeal Record g. Formal Exceptions Not Ne1.:essary in Order

to Assign Error 6.8 Transcrihing and Filing Notes of Reporter

Upon Appeal ........................... 3543

6.9 Prep·uation and Transmission of Rec·ord to Appellate Court on Appeal by Defendant . . . . . . 3544 a. Pn·paration b. Filing and Service c. Approval by Lower Court d. Umissious and Corret·tions e. Transmission of Original Papers f. Clerk'" Costs

6.10 Trar.smission of Record to Appellate Court Upon Appeal by State . . . . . . . . • • • . . . . . . . . 3544 a. Filing and Servit:e b. Clerk's Cost

6.11 Briefs . ..... . ........ • .. • . . ...•.....•.. 3544 a. What to Contain b. Time lor Filing

6.12 Requests for Oral Argument .... . •....•.• • 3545

6.13 Dismissal of Appeal for Failure to- Prosc..'Cute 3545

6.14 Appeals in Criminal Causes to Have 1>recedence . . . . . . . . . . . . . • . . • . • • . . • • . • • • • 3545

6.15 Bail Pending Appeal . . • . . • . . . . . • • • . . . • • • • 3545 a. Notice of Appeal Required; Review of Case of

Nom:ompliant·e b. Application to Lower Court c. Lower Court to State Reasons \Vhen Denying d. Review of Denial upon !llotion of Defendant e. Review of Order Granting Upon Motion of

State

6.16 Scope of Review • . . • . . . . • . • . • • • . • • • • • • • . 3545 u. Generally b. Sufficiency of Evidence

6.17 Application for Rehearing . . • • . . • • . . . • • • • • • S54S

PART Vll. FORMS

7.1 Approved Forms •...•.••......•. • ..• • •.• 3545

7.2 Forms ............••..••...•.•.•••••••. 3545 a. Appeal, Notice of b. Appeal, Joinder In c. Bond in Criminal Appeal

Affidavit of Bondsmt•n d. Certificate of Clt•rk When Original e. Certificate of Clerk \\'ht>n Transcript

Used Instead of Original Papt.•rs f. Certificate of Clt·rk on Stipulation g Reporter's Certifit:ate 1a: C.h·il Supersedeas Bond i. Pt>tition for Writ of Certiorari f. Certificate of Service

3523

' FLORIDA APPELLATE RULES · i

APPELLATE RULES • I f ~

~;i . ·~ ~ ::,J, ' I J ,;, :; : . I, .::.1 . ' rl

'~ (As amended to January 1, 1960.) !j

''! 1: :~ . : , 1:! : • ' ;' ; I • ! ( ) ,," j ; '

PART _I • . APPLICATION, .DEFINITIONS AND Cn'ATION . •' ., . ;·'

Rule 1.1 APPLICATION. , I i •( ' '

These rules are adopted pursuant to the ~onstitutional and inherent powers ·of the Supreme Court .of Flor,ida. From their effective date they: . shall govern· all proceedin~s in tl;~;e Supreme Court, the .district court.s of appeal; and the . circuit . courts ' in , the exercise of" their appellate jurisdictiOn. 'All · rules s,hall a~ply equally to all such courts unless spe'cifig~lly limited to one court. ,

1 •

Rule 1.2 CITAT~ON ,, .... ,,. j· .,

These~ules • shall be cit~d , as~ '"Florida .A,p'pel- . late Rules." · ,· · · · ·.· · · · . ·,, '" '•

• • • 0 , • I 1 L >) :\}

•. •.: \ l . :··

Rule 1.3 DEFINITIONS . . . ·' Throughout these . rules: unless the . context' '

or subject matter otherwise 'yequir~~: ,, .. ·"

~/·'At~o!-'~_ey . of ,Recprd" me~ns n,ot .:L: c;mly .;the , attorney who appears or whose name IS affixed to the. pleadings ·or, ~papers,• but any member . or , associate of a la.w firm to .~hicn he may belong.

• "'! ~ / ) 1 • ;.+ ;.. ; cj ~ : , ' ! l f)

· :,,Clerk" means the· person or ·official specifically designated as such for the court o:r body ~~ncerped; or if no ·person ·oi<Official has been·' specifi'cally so 'designated, t then· the official or agent of such court or body who. most ,clo~ely resembles a clerk' in' th~ ftinc't\ons he performs.

, 0 : 1, I l 'I' , , • , ·, • J ~

. '1Comrtti'ssion" or "Board" shall' mean' .Ia com

misstoner or other 'lidihinisti'ati'Ve agent or' officer where the context of these rules requires.

~: '~Court'Y means ·the Supreme ~co~r.i.: .the : d.is~·' trict courts of appeal, and ·, the circuit :courts i!l ~he exercise of their appellate jui'isdictio'n.

.. ''District Court" mea118 . di;t~igt ~ co~~( "Jf'! appeal.

·:d ..,. · . '( .1 ~ ... ~ dj i ·r · · l: , · · recording is not required then filed. A paper is deemed to be recorded when filed with the clerk and assigned a book and page· number • Where there has' · been' .a timely and proper motion or petition for 1 a new trial, rehea~ing or reconsideration by the lower court, the decision, judgment,, Qr,der or 'decree shall :not be deemed rendered until such motion or pet~tion is disposed of. ' ·

)

Rule 1.4 EFFECTIVE DATE: REPEA~

These rules ~h'a):l become effective July 1, 1957. Proceedings commeric.ed prior to ;r uly 1, 1957, shall be governed by the ·rules theretofore in ,effect. From their effective date as to IlJ.)q~eedings . com.l!le.nced ' afte~ J un~ ~o. 1!)51J,o these ru1es shall supersede all confhctmg rules· and statutes. All statutes not superseded hereby or in conflict herewith shall remain, in effect as rules promulgated by the Supreme Court. ·

PART ll. THE COURTS ·... ~

1 , :

Rule 2.1 THE SUPREME COURT

1 a~" Intetnal-'Gov~rnment.

l t.(.'• 'J' ' • ' '

(1) Exercise, 'of, .Powers and Jurisdiction.~: The· Supr.eme Court .will exercise its powers •and · jurisdiction en .. bane. Five justices· shalL.,con.,. ' stitute a quorum but the concurrence of four shalf be necessary to a decision . . H four justices who hear the 'argum'ent do not concur; the cause spaU be submitted to the other two justices. ~ .0 ·'· /

Nothing . herein · contained shall be .deemed(; to affect any prov.ision of the statutes in this state in effect on July 1, 1957 which in event: of disqualification, absence, sickness or dis-.) ability .of the judge of a separate .juvenile court or a county judge who is also judge of the juve-d n!i1e;:cour.t . .in. his county, authorize the substitution of county judges and circuit judges · f6~J judges . of . separate . juvenile courts, · and the s,ubstitution of 'Circuit judges for county judgei\

. "Legal Holiday" means ·New _Year's Day, in 'those ·counties· where there is · no separate Good Friday, Memorial · Day· (May. 30th~ ;•. Julyi· ju.venile .. court .. and .the county judge"is .the5 <(\~h, Labor Day, General Election Day, any juvenile court judge, but this rule shall restate-wide primary election day, · Ve~eran1s; 'l)a'y\' late solely teL t'he assignment or a judge to (November 11th), Th~n~sg~~l,i;f,g J?ay~· ;.~~~ist- act'.for . and in. lieu . of .a separate juvenile eoutt) mas, and any Mondf.\Y IWm~di,ftt,elY;' .fQU.<?1VI~ a jp;q~e .. ?! ia couqty- ,jp.d,~e ~.~o, is, al~o ~u,ve.nil~) Sunday upon which one of the foregoing holi- cpurt JUdge, , by . ~*~ ch~ef iJUSbc;e of thi.s Court) days falls. ,. ., .,, , .. , ,. ' ' ·.,., .. ; .. ,. ', .:, tffi?~r · the F~o~;_W~ 1 yoristituti~n . . ,· ·.·:· · .• .. ,·, ~-· ,')

:· : . ' .. .~. ·r '] , ·~ ,. il.l 'l.: r· ."" \ 'J .

"Lower Court". m!!ans ', t.h~, ~our1; j or 'agency, (2) i :Chief· Justice. I ·.; w;.:. ,, ·,, . < ,:')

board, commission '!·''Or· body ··.,wh;Qse · ,deciaion, <'' t' , judgment, decree or order is ' being· reJViewed or ~- · :<j(a~ Th~ chj(rf,~~ JJistic~ · 'of..·. tJl~ "Sup:.:~nm) whose act is in que!i!tl~p. ' <' · ~:· .,. . .'''' •, ,·." <1 Court shall be c'hosen by the JU.sbces on, the

<;>J,>iJ~, :;» '!'l'-•' ''" •J.,•, .;/ .,.,, "" ,, ! .l fj);:stJ! <faY.(i9f 'iJUJY.:' 19lJ7oc ~J,nd Sb'llll sezye tfir a "Rendition" of a judgment'; decisiohi·•o.rde\r or term of two years. In the event of.< a vacancy a

decree means that it has been reduced to writ- successor shall be chosen within sixty days for ing, signed and made a matter of record, or if a like term. The chief justice shall be the ad-

P <'"·!(l f •-· '- ! I,)

3524


ministrative officer of the court and shall be responsible for the dispatch of business.

(b) '!'he chief justice ·shall be notified by all justices of any contemplated absences from the court and the reasons therefor.

(c) In the event of the death or retirement Of tHe chief justice or his inability to act the justice longest in continuous service shall perform the duties during the inability, or until a chief justice is elected.

(3) Administration. The chief justice is vested with, and shall exercise in accordance with the rules of the Supreme Court, authority temporarily, to assign (1) justices of the Supreme Court to district courts of appeal and circuit courts; (2) . judges of district courts of appeal and circuit judges to the Supreme Court, district courts of appeal and circuit courts; (3) judges of other courts, except municipal courts, to judicial service in any court of the same or lesser jurisdiction. Any retired justice or juq,ge . may, with .. his consent, be likewise assigned to judicial service, and shall while serving . receive as additional compensation the diffe1;enc'e between retirement compensation and the'· compensation applicable to such serv· ice.

(4) . How. Assignments of Judges Made.

(a) When any justice of the Supreme Court is unable to perform the duties of his office ,on accpunt of absence, disqualification, sickness or other disability, or beca use of asassignment to special duty, or when necessary for the prompt dispatch of the business of the Court, the chiE!f justice is hereby authorized to <;all any judge of a district court of appeal or circuit judge to the Supreme Court for such time as the chief justice may designate.

(b) When a judge of any district court of appeal is unable to perform the duties of his office on account of a f> sence, sickness, disqualification or other disability, or because of assignment to special duty, or when necessary for the prompt dispatch of the business of the Court, said judge or clerk of the district court of appeal shall advise the chief justice of such inability. and when so advised the chief justice shall assign a justice of the Supreme Court, a . judge of another district court of appeal or a circuit judge to such courLfor such time as the chief justice may direct.

form the duties of such judge; provided, however, that no order of assignment shall be necessary if there be another judge or judges of the circuit available to perform the duties of such judge which may be provided for by the local practice or rules, . or the presiding judge may allocate the business of such judge to any judge or judges of the circuit; provided !urther, that should any judge be disqualifie<;i or recuse himself in any cause, such cause shall be reassigned to another judge in accordance . with the lociLl ·rules or practice of sai'd circuit for assignment of business to the judges thereof.

(d) Repealed, effective July 1, 1958.

(e) When any judge of the Court of Record of Escambia County is unable to perform the duties of his office for the reasons named in paragraph 4 (c) of these rules, or when necessary for the prompt dispatch of the business of the court, or for other reasons beyond its control the docket is shown to be in arrears and other judges of said court as well as the judges of the Circuit Court of Escambia Coun;. ty, who, under Section 10 of Article V of the Constitution, may be requested to 'perform the duties of such judge are not available or are unable to perform them, a judge. or tl;!.e .cJerk of said court shall advise the chief justice who shall assign a justice of the Supreme Court, a judge of the district courts of ap~ peal, or a circuit judge, to said court for such time as he may direct.

(f ) Repealed, effective July 1, 1958. ' :.•

(g) When the judge of any criminal court of record is unable to perform the duties of his office because of absence, sickness, dis-:qualification, or other cause, or when neces-:sary for the prompt dispatch of the business pf the court, the said judge or the clerk of said court shall advise the chief justi:ce wh~ inay assign any judge of any other criminal or civil court of record having· the same or greater jurisdiction, to perform , the , dutief! of said judge for such time as the chief. justice may direct; provided, .however, that .tf.. .theli~ be more than one judge of the said court available ,, and qualified, he shall perform· ·the duties of the disabled or disqualified judge. \' f

l (h) When the judge of any County cou-rt

or county judge's court is unable to ··perform the duties of his office because of. abseuos,, 1>i~k~ i::l.ess, disqualification or other · inability, · o.t when necessary for the prompt dispatch i ~f

· (c) Wheri any circuit judge is urill.ble to the business of the court, said judge ·or· th~ perform the duties of his office on account of clerk of said court shall advise the chief: jusabsence, sickness, or other disability, or be- tice who .may assign the judge of·· any· ·othel!. cause of assignment to special duty, or when county court or coun.ty ju;!}ge's. court hav:inQ' necessary for the prompt dispatch of the busi- the same or greater jurisdic~ion to.· per:f<t.tm ness of the court, said circuit judge or the· the duties of said disqualified judge for such presiding judge of such circuit shall so ad- time as the chief justice may ·direct. \ Nothing vise the chief justice, who ·shall assign a jus- herein contained shall • be deemed to affect ·any tice of the Supreme Court, a judge of the dis- provision of the statutes · in this state in effect ~;r-ict,) cOij)l't, or judge ,oi another .d.rcu~t. ~tb .per- July . l~ .! 1957 . authorizing :: the·. substitu.tioor Lhf

6ri~~


circuit judges for county judges in the event of disqualification, absence, sickness or other disability of such county judge but this rule shall relate solely to the assignment of a judge to act for and in lieu of a county judge by the chief justice of this court under the Florida Constitution.

Provided, however, that if the county has more than one county judge, such additional judge shall perform the duties of the disabled or disqualified county judge if he is available and qualified.

When a county judge shall be disabled or disqualified because of illness, interest, absence from his jurisdiction or other cause, and it is desired to have a circuit judge perform the functions of a county judge as authorized by the statutes, such disability, disqualification and the cause thereof shall be certified by the county judge or by the clerk of the county judge's court, as required by statutes, to a circuit judge or judges of the county or circuit available and able to act, who shall thereupon perform the functions of such disabled or disqualified county judge until such inability or disqualification shall cease.

(j\ When thP inrl!!'e of ;.~ nv in"tif'P of the peace court, small claims court. juvenile court, or traffic court is unable to perform the duties of his office because of absence, sickness, disqualification or other disability, and there is another judge or judges of s<tid court available and qualified to act, they shall perform the duties of said judge. In such case, if there shall be no judge willing to perform said duties, the chief justice. upon hPing notified by the said jndge or the clerk of saicl court. shall allocnte the busines!'l of said court to !mch avnilahle or qualified judge or judgel'l who shall perform such duties : provic!Nl. fnrther. that if there be no available and qualifi('(l juclge of said justice of the peace court, small claims court, juvenile court or traffic court, the chief justice may al'lsign a judge of another such court of the 11ame OJ' g1·e:> ter iur 'sdiction to perform the duties of thP .iudge of said court for such time as he may dil·ect.

Nothing herein contained shall be deemed to affect any provision of the statutes in this state in effect on July 1. 1957 which in event of disqualification, absence, sickness or disability of the judge of a sePar?te juvenile court or a county judge who is also judge of the juvenile court in his county, authorize the substitution of county judges and circuit judges for judges of separate juvenile courts, and the substitution of circuit judges for county juclges in those counties where there is no separate juvenile court and the county judge is the juvenile court judge.

(j) Assignment of justices or judges to other courts as contemplated by Section 2, Article V of the Constitution shall be effective when endorsed by the chief justice and three

other justices of the Supreme Court. When possible to do so such assignments shall be made from courts whose dockets are nearest current in order that there be the least delay in the adjudicating of pending cases.

(5) Judisdiction of the Supreme Court.

(a) Appeals from trial courts may be taken directly to the Supreme Court, as a matter of ril{ht, only from judgments imposing the death penalty, from final judgments or decrees passing directly upon the validity of a state statute or a federal statute or treaty, or construing a controlling provision of the Florida or Federal Constitution, and from final judgments or decrees in proceedings for the validation of bonds and certificates of indebtedness. The Supreme Court may directly review interlocutory orders or decrees passing upon chancery matters which upon final decree would be directly appe~dable to the Supreme Court. In all direct appeals and interlocutory appeals, the Supreme Court shall have such jurisdiction as may be necessary to complete determination of the cause on review.

(b) Appeals from district courts of appeal may be taken to the Supreme Court, as a matter of right, only from decisions initially passing upon the validity of a state statute, a federal statute or treaty, or initially construing a controlling provision of the Florida or Federal Constitution. The Supreme Court may r·eview by certiorari any decision of a ui:strict court of aplJeal that affects a class of constitutional or state officers, or that passes upon a question certified by the district court of appeal to be of great public interest, or that is in direct conflict with a decision of another district cout·t of appeal or of the Supreme Court on the same point of law, and may issue writs of certiorari to commissions established by law.

The Supreme Court may issue writs of mandamus and quo warranto when a state officer, board, commission, or other agency authorized to represent the public generally, or a member of any such board, commission, or other agency is named as 1·espondent, and wl'its of prohibition to commissions established by law, to the district cou1·ts of appeal, and to trial courts when questions are involved upon which a direct appeal to the Supreme Court is allowed as a matter of right.

(c) The Supreme Court or any justice thereof may issue writs of habeas corpus return»hlP lu•forp thP ~upr<>mP C'mtrt or anv iustice thereof, or before a district court of appeal or any judge thereof or before any circuit judge.

(d) When the jurisdiction of an appellate court has been improvidently invoked, that court may of its own motion or on motion of either party to the cause enter an order tran<~ferring it to the court having jurisdiction. Five days notice of such motion or proposed action shall be given to the other parties. Notices of

3526


appeal :md other papers filed prior to the transfer shall have the same force and effect as if filed in the proper court and as of the time when filed in the court from which the transfer was made.

(e) The Supreme Court may on its own motion or on suggestion of one of the district courts of appeal issue all writs necessa1·y or proper to the complete exercise of its j urisdiction.

(6) Judges Shall Devote Full Time to Judicial Duties. Ju stices of the Supreme Court, judges of district comts of appeal and circuit judges shall devote full time to the ir judicial duties, shall not engage in the praetice of law or hold any office or position of p1·o fit under the state or federa l govemment and ,;hall not hold o lfice in any political pa rty. Compensation for ::;e1·vices in the state militia or the armed fo1·ces of the United States or other defen se ageru.: ies recognized by the Supreme Cou~·t for ,;uch periods as may be determined by it shall not be deemed profit.

b. Clerk.

(1) The Supreme Court shall appoint a clerk who shall hold office during the pleasure of the court and perform such duties as the cou1·t di1·ects. His compensation shall be fixed by law.

(2) Office. The clerk shall have his office in the Supreme Court building. He s hall devote his time to the duties of the office a nd shall not en gage in the practice of law while he continues in office.

(3) Custody of Books, Records and Seal. All books, paper::;, records, files and the se,tl of the court :shall be kept in the office of the clerk and in his custody; and the clerk shail not allow any l>ook, paper, record or file to be taken from his office or the courtroom, except by a justice of the court or upon the order of the court.

(4) Minutes of Proceedings. The clerk shall keep, in ::;ub;;tantially bound books. fair and regular minutes of the proceeding::; of tho! court, a record of all its judicial act:>, and such other re<.:ords as the court may from time to time order or direct.

(5) Docket of Cases. The clerk shall keep a docket of all ca;;es that are appealed to, or whir·h nril!in;~IP in. lhP •· OIIJ' I F::,.h ''""" ..:h;oll be docketed and numbered in the orde1· that the notice of appeal or the petition originating the cause is filed in the court.

(6) Filing Fee. In all appeals, and in all cases orig-inating in the court, the clerk shall require the payment of twenty-five dollars when the notice of appeal, petition or other· initial pleading is filed; provided that such payment shall not be exacted in advance in criminal appeals in which the defendant haR been adjudicated insolvent for the purpose of an appeal,

or in appeals where the State of Florida is the real party in interest as the moving party; provided further, that the payment of co;;ts shall not be required in habeas corpus proceedings, or appeals therefrom, arising out of or in connection with criminal causes or convictions.

(7) Issuam·e of Mandat.e, Recordation and Notification. The clerk shall issue such mandates or process as may be directed by the com·t. l'pon the is;;uan ce of any mandate the clerk shall reco1·d the ;;arne in a book kept for that purpo;;e, in which shall be noted the date of issu a nce and the manner of transmission of the mandate to the court below.

In proceeding~ where no mandate is issued, the clerk, upon final adjudication of the pending cau;;e, shall transmit to the party affected thereby a copy of the court's judgment. The clerk ~h a ll notify the attorneys of 1·ecord of the is :; uan<"e of a11y mandate or the rendition of any final judgment.

(8) Return of Original Papers. Upon the conclusion of any cause in the Supreme Court, the clerk s hall return to the clerk of the lower court such o1·iginal papers or files as may have been transmitted to this court for use in the cause.

c. Librarian. (1) Personnel. The Supreme Court shall

appoint a lil>rarian of the Supreme Court and such assistants as may be necessary.

(2) Custodian. The Supreme Court library shall be in the custody of the librarian, but under the exclusive control of the Supreme Court.

(3) Use of Library. The library shall be open to mPmbers of the bar of the Supreme Court, to members of the legisl a ture, to law officers of the executive or other departments of the ,;t~1te . and to ;;uch other persons as, by special permis;;ion of the court, may be allowed to use the library.

(4) Lihrary Hours. The library ~hall be open during such time;; as the reasonable need:i of the bar rf:'ttuire and shall be governed by the reg-ulations made by the librarian with the approval of the court.

( 5) Bonks. Books Rhall not be removed from tht> lil•rarv. PXI'P!"lt for n..:P hy thE' in-:tir·es or on order of the chief justice or any jus tic e.

d. Marshal.

(1) Appointment. The Supreme Court shall appoint a marshal who shall hold office at the pleasure of the court and perform such duties a~ the court di1·ects. His compensation shall be fixed by law. The marshal shall have power to execute process of the court throughout the state, and in any county may deputize the sheriff or a deputy sheriff for such purpose.

(2) General Duties. The mar!!hal shall perform such clerical or ministerial duties as

3527


the court may direct, and such duties as may be required by law.

(3) Custodian of Building and Grounds. Subject to the direction of the court, the marshal shall be custodian of the Supreme Court building and grounds. He shall keep the building clean, sanitary and free of trespassers and marauders and shall maintain the same in good state of repair; and shall cause the grounds t0 be beautified and preserved against depredations and trespassers.

e. Terms of Court. (I) Regular Terms. The court shall hold

two terms in each year, in the Supreme Court building, commencing respectively on the second Tuesday in January and July.

(2) Continuance of Cases. At the end of each term, all matters not disposed of shall be continued to the next term.

f. Sessions and Adjournments. (I) Open Sessions. All sessions of the

court shall be open to the public, except conference sessions held for the discussion and consideration of pending cases and the formulation of opinions by the court.

(2) Hearings. The first and third Monday in each month shall be Motion Day in this court. Motions dealing with preliminary matters and interlocutory appeals will be heard at 9 :30 a .m. on such Monday; provided notice of the hearing has been served on the opposite party at least five days prior to the day set for the hearing and proof of service has been f iled in this court. All other matters will be heard at hours assigned by the clerk. If the court is not in session on the Motion Day set, the hearing will be held on another Motion Day to be determined by the court, of which the clerk shall notify the parties. For good cause shown, the court may set a matter down for hearing on a day other than a Motion Day.

(3) Holidays. The court will not hear arguments or hold open sessions on Saturday, Sunday or a legal holiday, except in cases of emergency.

( 4) Recesses and adjournments. The court, in appropriate instances, will direct the clerk or the marshal to announce recesses and adjournments.

g. Advisory Committee on Rules. There is hereby created an advisory committee on rules consisting of the following persons to be appointed by the chief justice of the Supreme Court to serve for a period of two years: one justice of the Supreme Court, one judge of the district courts of appeal, one circuit judge, and three members of the Florida Bar. This committee shall conduct a continuous study of the appellate rules and shall meet on June 1st and December 1st of every year in the Supreme Court building in Tallahassee to consider the results of such study and to make such recom-

mendations as are deemed advisable to the Supreme Court for the improvement of the appellate rules.

Rule 2.2 DISTRICT COURTS OF APPEAL

a. Internal Government.

(I) Exercise of Powers and Jurisdiction. The court sha ll exercise the powers and jurisdiction en bane. Two judges may hear any matter but not less than three judges shall consider each case and the concurrence of two shall be necessary to a decision.

(2) Chief Judge.

(a) The Chief Judge shall be chosen by the judges of the Court on July 1, 1957, and shall serve for a term of two years. In the event of a vacancy a successor shall be chosen for the unexpired term. He shall be the administrative officer of the court and responsible for the dispatch of business. He shall assign cases to the judges for the preparation of opinions, orders or judgments.

(b) If the Chief Judge is unable to discharge his duties for any cause the judge longest in continuous service, or as between judges with equal continuous service, the one having the longest unexpired term and able to do so shall perform the duties of Chief Judge pending his return to duty.

(c) Judges shall notify the Chief Judge of any contemplated absence from the court and the reasons therefor.

(3) Assignments of Judges. See Florida Appellate Rule 2.1a ( 4).

( 4) Jurisdiction. See Constitution, Art. V, Section 5(c).

b. Clerk.

(I ) Appointment. The court shall appoint a clerk who shall hold office during the pleasure of the court and perform such duties as the court directs. His compensation shall be fixed by law.

(2) Office. The clerk shall have his office in the headquarters of the court. He shall devote his time to the duties of the office and shall not engage in the practice of law while he continues in office.

(3) Custody of Books, Records and Seal. All books, papers, records, files and the seal of the court shall be kept in the office of the clerk and in his custody; and the clerk shall not allow any book, paper, record or file to be taken from his office or the courtroom, except by a judge of the court or upon the order of the court.

(4) Minutes of Proceedings. The clerk shall keep, in substantially bound books, fair and regular minutes of the proceedings of the court, a record of all its judicial acts, and such other records as the court may from time to time __ order or direct.

"3528


(5) Docket of Cases. The clerk shall keep a docket of all cases that are appealed to, or which originate in, the court. Each case shall be docketed and numbered in the order that the certified copy of the notice of appeal or the petition, suggestion or information originat~ ing the cause is filed in the court.

(6) Filing Fee. In all appeals, and in all cases originating in the court, the clerk shall require the payment of twenty-five dollars at the time the certified copy of the notice of appeal, petition, or other initial pleading is filed; provided that such payment shall not be exacted in advance in criminal appeals in which the defendant h as been adjudicated insolvent for the purpose of an appeal, or in appeals where the State of Florida is the real party in interest as the moving party, provided further, that the payment of such fee or any costs shall not be required in habeas corpus proceedings or appeals therefrom, arising out of or in connection with criminal causes or convictions.

(7) Issuance of Mandate, Recordation and Notification-Written Opinions. The clerk shall issue such mandates or process as may be directed by the court. Upon the issuance of any mandate the clerk shall record the same in a book kept for that purpose, in which shall be noted the date of issuance and the manner of transmission of the mandate to the court below.

In proceedings where no mandate is issued, the clerk, upon final adjudication of the pending cause, shall transmit to the party affected thereby a copy of the court's order or judgment. The clerk shall notify the attorneys of record of the issuance of any mandate or the rendition of any final judgment; and he shall furnish without charge to all attorneys of record in any cause a copy of any order or written opinion rendered in such cause.

(8) Return of Original Papers. Upon the conclusion of any cause and expiration of the time for any further review or appeal, the clerk shall return to the clerk of the lower court such original papers or files as may have been transmitted to the court for use in the cause.

(9) Additional Duties. The clerk shall perform such other duties as are required by law or as the court may direct.

c. Marshal.

(1) Appointment. The court shall appoint a marshal who shall hold office at the pleasure of the court and perform such duties as the court directs. His compensation shall be fixed by law. The marshal shall have power to execute process of the court throughout the state, and in any county may deputize the sheriff or a deputy sheriff for such purpose.

(2) General Duties. The marshal shall perform such clerical or ministerial duties as the court may direct or as may be required by law. . (3) Custodian of Building and Grounds.

The said marshal shall, under the direction of the court, be custodian of the headquarters occupied by the court, whether such headquarters be an entire building or a portion of a building. Should the court occupy an entire building, he shall keep the grounds thereof clean, sanitary and free of trespassers and marauders and shall maintain the same in good state of repair and cause the grounds to be beautified and preserved against depredations and trespasses and shall perform such other duties as may be required of him by the court or the judges thereof.

d. Terms of Court. (1) Regular Terms. The court shall hold

two regular terms in each year, at its headquarters, commencing respectively on the second Tuesday in January and July.

(2) Special Sessions. The court may hold special sessions at such times and places within the district as may be deemed necessary for the public interest, and shall hold at least one session every year in each judicial circuit within the district wherein there is ready business to transact.

(3) Continuance of Cases. At the end of each term, all matters not · disposed of shall be continued to the next term.

e. Sessions and Adjournments.

(1) Open Sessions. All sessions of the court shall be open to the public, except conference sessions held for the discussion and consideration of pending cases and the formulation of opinions by the court.

(2) Motion Days. In the First and Second Districts, unless otherwise ordered, the first and third Tuesday of each month shall be Motion Day. Hearings set for the Motion Day f alling on the first Tuesday of the month shall be held either at the place where the court is then holding its session or at the hea dquarters of the court unless the court fixes another place within the district. Hearings on the Motion Day falling on the third Tuesday of the month shall be held at the headquarters of the Court unless the Court fixes another place within the district. In the Third District, every Monday shall be Motion Day. Except as otherwise specifically provided by these rules all hearings on all matters, except arguments on the merits in appeals from final judgments or decrees, will be held at 9:30 A.M. in the First and Second Districts and at 9 :00 A.M. in the Third District, on a Motion Day, provided that noiice of the hearing has been served on the opposite party at least five days prior to the day set for the hearing and proof of service has been filed in the court. If the court is not in session on the Motion Day set, the hearing will be held on another Motion Day to be determined by the court, of which the clerk shall notify the parties. For good cause shown, the court may set a matter down for hearing on a day other than a Motion Day.

3529


(3) Oral Argument Days. Unless otherwise ordered the court will hold sessions on Wednesday through Friday in the First and Second Districts, and on Tuesday through Friday in the Third District, of such weeks and at such places within the district, as announced by the court, for the purpose of hearing oral arguments on the merits in appeals from final orders, judgments or decrees.

(4) Saturdays. The court will not hear arguments or hold open sessions on Saturday or legal holidays except in cases of emergency.

(5) Recesses and Adjournments. The court, in appropriate instances, will direct the clerk or the marshal to announce recesses and adjournments.

Rule 2.3 ATTORNEYS

a. Practice by Local Attorneys. A 11 person!~ rluly licen!led to pr11ctice lnw. and in J!'Oo•l standin!!' as a member of the FIMida Bar shall be permitted to practice in the Court.

b. Practice by Foreign Attorney!!. Attorneys in good standing of other states may appear in p11rticular ca!les in the Court, when under the rules of comity of such states, attorneys from Florida are simil a rly permitted to appem·: but atto1·neys of other states shall nnt do a general practice in the Court without fin•t obtaining a certificate to practice law in the courts of this sta te.

c. Clt>rks and Secretaries to .Justices or Judges Not to Practice. No one serving as a research aide or secreta ry to a justice or judge of the Court shall practice as an attomey in any court or before any ag-ency of government while continuing in th at position: nor shall he ever participate by way of any form of profe!lsional consulta tion and assistance in any case that was docketed in the Court during the period such position was held by him or prior thereto.

d. Attorney as Agent of Client.

(1) Service Upon AttornE.'y. In all matters relating to the prosecution or defense of any matter in the Court, the attorney of record shall be accepted as the agent of his client, and any notice by or to such attorney, act of his, or step taken by him in the prosecution or defense of such proceeding, sh~tll be accepted as the act, notice to, or step of the client.

(2) Withdrawal of Attorney. An attorney of record will not be permitted to withdraw from a c11use unles!l his withdr11wal i!l sanctioned by the Court. He may file his motion for that purpose in the Court setting up the reasons for his withdrawal. A copy of said motion or petition shall be served on the client and the attorney for the adverse party.

(3) Additional Attorneys. After an appeal or other proceeding has been filed or docketed

in the Court no attorney other than the original attorney of record in the appellate court or a member of his firm shall be permitted to appear or participate as an attorney for any party to the cause at any st age of the proceeding unless his appearance or participation is allowed by the Court after good cause shown.

If an attorney not an original attorney of record in the appellate court desires to appear or participate in a cause, he shall first file in the Court his motion setting forth the reasons for his appearance or participation and the extent of his employment.

PART III. PROCEEDINGS GENERALLY

Rule 3.1 NATURE OF PROCEEDINGS

Except where petitions for certiorari are permitted by law or by t hese rules, all appellate review shall be by appeal.

Rule 3.2 COMMENCEMENT OF PROCEEDINGS

a. Method. An appeal shall be commenced by filing a notice of appeal and depositing a filing fee of $25.00, which may be by check or money order paya ble to the clerk of the appellnte court, with the clerk of the lower court. Within five d11ys after the notice is so filed the c Jerk of the lower court shall transmit a certified copy thereof to the clerk of the appellate court tog-ether with the filing fee of $25.00. Other proceedings shall be commenced by filing the initial pleading with the clerk of the Court a nd paying him a $25.00 filing fee.

b. Time. Appeals from final decisions, orders, judgments or decrees shall be commenced within GO days from the rendition of the final decision, order, judgment or decree appealed from, unless some other pel'iod of time for taking an appeal is specifically provided by statute or these rules.

c. Contents of Notice. The notice of appeal may be in the form approved by the Court. Tho notice of appeal shall state the title of the court, and the style of ~he cause from which the appeal is taken and the title of the cout1; to which the appeal is taken; the name and designation of the appealing party, whether plaintiff or defendant: the name and designation of the opposing party, whether plaintiff or defendant; the nature, and date of rendition of the order, judgment or decree appealed from; and the date and book and page of the public record in which it is recorded.

d. Effect of Fil ing Notice. The filing of the notice of appeal and deposit of the filing fee with the clerk of the lower court shall give the Court jurisdiction of the subject matter and of the parties to the appeal. Faillll'e to transmit a certified copy of the notice and the filing fee to the clerk of the appellate court shall not be jurisdictional.

e. Notice to Re Recorded. The notice of appeal shall be recorded in the lower court.

8530


f. Payment of Costs by Original Plaintiff. No appeal may be taken by the original plaintiff in any suit or proceeding until he shall have first paid all costs that have accrued in or about the suit, and have been specifically taxed against him, up to the time the appeal is taken; provided, that nothing contained herein shall require the prepayment of costs by the original plaintiff when he has assigned as error the taxation of costs and has superseded the order, judgment or decree specifically taxing the same.

Rule 3.3 BASIS OF HEARING AND DETERMINATION

Appeals will be heard and determined on assignments of error, appendices and briefs filed in accordance with these rules; but the record-on-appeal will be referred to when necessary to settle material conflicts between the parties. No assignment of error or matter contained in an appendix will be considered unless lt is properly based on the record-on-appeal.

Rule 3.4 FILING AND SERVICE OF PAPERS

a. Filing. Papers required to be filed under these rules shall be filed with the clerk -of the appellate or lower court as the case may be. Copies in addition to the original paper need not be filed except where specifically required.

b. Service.

(1) Upon Whom Made. Wherever by these rules, or by the order of the court service is re{luired or permitted to be made upon a party represented by an attorney of record, the service shall be made upon the attorney unless personal service upon the party is ordered by the Court.

(2) How Made.

(a) Service upon the attorney may be made by mailing a copy of the paper or notice to his last known address; or handing it to him personally; or leaving it at his office with his clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at his usual place of abode with some person of his family above fifteen years of age and informing such person of the contents thereof.

(b) When personal service upon the party is ordered by the Court, or when the party is not represented by an attorney of reeorcl. service may be made upon such party in the manner set forth in paragraph (a) hereof.

(3) Effect of Mailing. Service by mail shall be deemed complete upon mailing; but service by mail shall add :\ days to the time allowed to do any act required to be done

within a certain time after service of a notice or paper.

(4) Proof of Service. When service is made by some person other than an executive officer of the Court, proof of service shall be made by certificate and filed in the Court.

(5) Copies to Be Served. A copy of each paper required to be filed under these rules, including the notice of appeal, shall be served on the adverse party or his attorney at or prior to the time of filing. Where parties are numerous the Court may limit the number of copies to be served.

Rule 3.5 ASSIGNMENTS OF ERROR

a. Assignments of Error by Appellant. Within 10 days after the notice of appeal has been filed, the appellant shall file his assignments of error with the clerk of the lower court.

b. Cross Assignments of Error by Appellee. Within 10 days after the appellant has filed his assignments of error, the appellee if he desires review on any adverse ruling must file his cross assignments of error with the said clerk.

c. Contents. The assignments of error shall point out clearly and distinctly all alleged errors of the lower court relied on for reversal. Where the alleged errors are based on orders, evidence or charges such matters shall be specifically referred to, and where based on a motion for new trial, the grounds relied on shall be pointed out.

d. Extension of Time. The time for filing assignments and cross assignments of error may be extended by the appellate court or the luwer court.

Rule 3.6 RECORD-ON-APPEAL a. '\Vhat Constitutes. The record-on-ap

peal shall consist either of an original record or a transcript of record, or a stipulatecl st:~tement prepared in accordance with these rules. A tran!'cript of record shall be used only when so ordered by the lower court or stipulated by the parties. Appellant may, however, use a transcript as a matter of right if he elects to assume the cost thereof, which shall not be taxable as costs.

b. Duty to Prepare: Enforcement of Duties. The duty of preparing and transmitting to the court the record-on-appeal shall rest on the clerk of the lower court. The reporter shall have the duty of transcribing, certifying and transmitting to the clerk of the lower court such portions of the lower court proceedings as have been stenographically reported and designated by the parties. Appellant shall see that these duties are complied with and may enforce the same by motion in the lower or appellate court.

c. Preparation by Appellant. If the appellant elects he may prepare the record-on-appeal. In such event the clerk of the lower court shall be

3531

FLORIDA APPE:LLATE RULEs·

entitled to receive a fee only for verifying an uncertified transcript and certifying and otherwise .making said record conform with these rules; and he shall refuse to certify any record that does not comply with s'aid rules.

d. Directions to Clerk and Reporter.

(1) Directions to Clerk. The appellant shall file, within the time provided for filing his assignments of error, his directions to the lower court clerk for making up the record-onappeal, said directions to designate the portions of the original record, proceedings and evidence to be transmitted to the Court. Within 10 days after the appellant has filed his directions, the appellee shall file his directions designating any additional portions of the record, proceedings, or evidence he deems essential to be included in the record-on-appeal. If appellant is served with cross assignments of error he shall have 10 days thereafter to file additional directions to the clerk.

(2) Designation to Reporter. When any proceedings in the lower court have been stenographically reported, and have not been transcribed, the appellant, within the time for filing and serving assignments of error, shall file, and serve upon the appellee, a designation of such parts of said proceedings as he shall deem necessary for the appeal or an affirmative statement that he does not deem any part of such proceedings necessary. Within 10 days thereafter, the .appellee shall file and serve upon the appellant a designation of such additional parts of said proceedings as he shall deem necessary for the appe;;tl or an affirmative statement that he does not deem any part of such proceedings necessary. If appellant is served with cross assignments of error he shall have 10 days thereafter to file additional designations to the reporter. The original of such designations shall be filed with the clerk of the lower court and copies served on the reporter and the adverse party or his attorney.

e. Reporter's Transcribed Notes. After the service of the designations by the parties, and within the time herein prescribed, the reporter shall transcribe and certify to the clerk of the lower court a copy of the parts of the proceedings that have been designated by the parties and shall furnish to appellant at his expense such copies as he shall order. · -: , .

The lower: court clerk shall not be required to verify, no~ shall he make, a , charge tor, any ~tenographic, copy furnished and. certified by the r~Porter ' I.or . ; incorporation in the record~on':' ~ppeal. The ·tr~~,I;tscript' of the, testimony may be bc;nin,9. al),d paged sep~rat~ly in · volumes riot to exce~iJd ,~OO palres each: . · · ·

1

~-··At aU times prior to the· submission of the cause' for f'J:inal decision in · the :court, the -lower courtr-after notice, shali have the power to' make such: transcribed copy speak the truth. · · ' ' u;. -~-~I ~ ~;. · .. c ·· ·~;,.; :JJ ·T.:,. p_:~ ; ~ -:,: .. ,,:;· .,\.J _;..J ·F<:: :)c<J· .L .: .. ,:'J'~ rJ

f. Original Record.

(1) Contents and Transmittal. Within the time herein prescribed the clerk of the lower court shall transmit to the clerk of the Court all of the designated portions of the original papers and exhibits in the action or proceeding in which the appeal is taken, together with a copy of any such parts of the trial proceedings as were stenographically reported and have been designated by the parties and certified by the reporter for inClusion in the record-onappeal, and certified copies of the order, jUdgment .or decree . appealed from, and all appeal papers other than the notice of appeal and shall append his certificat e identifying the papers with reasonable definiteness. On appellate proceedings from a district court of appeal to the Supreme Court the record shall include the record, if any, transmitted from the lower court.

(2) Form In Which Papers Transmitted. The original papers, including the transcript of testimony, shall be fastened together in one or more volumes containing not more than 200 pages per volume. The pages of the record as prepared shall be p,umbered consecutively, and each volume shall include a cover page and a complete index of all papers therein. The clerk's office slrall use the flat filing system in the preparation of the record-on-appeal.

(3) Preface, Index. The record shall be securely bounp. and shall . be prefaced with a complete index, which shall state in chronological order the date of the filing of each paper, order or instrument in the lower court, the name or character of the instrument, an~ the page of the record where the same may be found. Deeds, contracts and the like shall be described by the names of the parties there~o. The names of witnesses and the pages where the testimony of each may be found shall be designated. ' · ·

g. Transcript of Record.

(1) When Used. If · -the parties shall so stipulate, or if the judge ·of the lower court is of the opinion, that the original papers in the case should be kept in the trial court pending the appeal for .use in the· trial of other litigation or for other valid reason, 'the judge may make an prder to that effect, and thereupon it shall be the .duty of the clerk of the lower court .from which the appeal is taken to transmit to the Court a certitied copy of. the re.cord in accord~ ance with these ruies • . · . .

• . J . •. ~--

' (2) Contents ,aiJ,d. Epr:m., No matter shall be inclu.ded in. the. ~r~nscript of reco:t:d that is not '\Vi thin . th~ scope ,;~f- , 'We · i}ssignmerits of er.r;or~ All pl~aqmgs, ~y~d,~~.ce , a:p.d , qther .matters , ~<!~ ess~ntial to the, , i:li'\~.~SlQ~ Qf s~td, ;pomt~ s:q~u ; })~ omitted. Formal p·arts of all pleadmgs and exhibits and 'mofe than: one copy' of"any document. .shall ·be ·exclude'dC Documents shall be abridged by omittilig all ii·:relevant! ano forril'M

~~£~ 1 :• c ;: j\~··.; JJJJ;& · J:).J:~ \ ~~ - ,) c .::J :::' ;·· ;:: , ; .it:·~ , ;:_·: . ~:

3532 .Jrf:-:t


parts. The transcript shaH·be bound, numbered, prefaced and indexed in·the same manner as an origina l record, and may: .be on either . letter or legal size paper. There shall be a cover sheet which gives the name of the trial judge and the names .and addresses of all attorneys of record. It shall include proof that the proper service has been made of copies of aU appeal papers.

h. ·Stipulated Statement. When the points to be presented on an appeal can be determined without an examination of the record jn the lower court, the parties may prepare and sign a stipulat ed statement in r the cause showing how the points to be presented arose and were decided in the lower court and setting forth only so many of the facts averred and proved, or sought to be averred ·or 'proved, as are deemed essential to a decision of the points by the Court. Within the . time p.rovided by this rule, the clerk of the lower court shall certify and transmit the stipulated statement, a copy of the order, judgment or decree. appealed from, and all other appeal papers to the. Court, and the same shall constitute the record-on-appeal.

i. · Filing, Use and Service of Copies. (1) Filing and Use, When the preparation

of the record-on-appeal has been completed it shall be promptly filed with the clerk of the lower .court and, prior to its transmittal to the appellate court, made available for use by the parties and their attorneys.'

(2) Service of Copy of Transcript. Where a transcript of record is to be used in lieu of the original record, the appellant shall file the sanie ' and serve a copy thereof upon the appellee; provided, that where there is more than orie :i.p!'rellee, and it is made to appear that the service of a copy on each appellee will work a:n undue hardship or entail unreasonable expense, the lower court, after notice, may authorize in lieu of such service, the filing of at least one but not more than three. copies of said transcriptwith the clerk of the lower court for the use of the appellees.

(3) Service of Copy of Reporter's Transcribed Notes. If the same are not being included in a transcript of the record, or a copy of the same is not already possessed by appellee, the appellant shall serve appellee with a copy of such portions of the reporter's transcribed notes as are to be included in the record-on-appeal. Where there is more than one appellee, and it is made to appear that the service of a copy on each appellee will work an undue hardship or entail unreasonable expens.e, t~e l.ower court, after notice, may authonze, m heu of such service, the filing of at least one but not more than three copies with the clerk of the lower c.ourt .for the use of the appellees.

( 4) Service of Copy of Index. Where the original record is used the clerk shall furnish a copy of the index to all parties as soon as it is prep?:red. . . .... , ,

· j. Time for Performance of Acts Relating to Record-on-Appeal. .. · (1) 'Originar Time Schedule~ Unless an appropriate extension order has been entered the act~ ,specified by these rilles · with respect ~o the ' ·ret:ord-on-aupeal shall be performed m accordance with the following time schedule: ' ':bir~ctions to the clerk of the lower court shitll be filed and served within' 10 days after the notice of appeal is filed; . · · ·· ·

Cross-directions to the clerk of the lower cour.t shall be filed and served within 10 days after appellee is served with appellant's directions.

Designations to the reporter (or statements that none of the stenographic notes · are to be transcribed) shall be filed and served within 10 . <J.ays after the notice of appeal is filed. . .· Cross-designations to the reporter (or statements that none of the stenographic notes .are to be transcribed) shall be filed and served within 10 days after appellee is served with appellant's designations.

. Reporter's transcribed notes shall be transcribed, certified and filed with the clerk of the lower court and appellant supplied with all copies ordered by him within 30 days after the filing and service of appellant's designations.

Service of copies of reporter's transcribed notes shall be made within 10 days after the original record has been completely prepared and filed with the clerk of the lower court.

Completion and filing of record-01i-appeal by and with the clerk of the lower court shall take place within 50 days after the filing of the notice of appeal.

Service of a copy of the transcript ·upon the appellee shall be made within 60 days after the notice of appeal is· filed.

Transmittal of the record-on-appeal to the clerk of the appellate court shall take place 110 days after the notice of appeal has been filed.

(2) Time Changes and Extensions. On motion and. after reasonable notice the above scheduled times may be reduced or enlarged J;>y order of the appellate court or by order of the lower court subject to review l;ly the appellate court on motion after notice .. An extension of time for the doing of an .act shall automatically extend the time for the doing of other acts which bear a time relation to it. When an ext~nsion order is entered by the lower court, a certified copy thereof shall be filed promptly by the moving party with the clerk of the appellate court.

, ~· "Record. for Preliminary Hearing • . If, ,prwr to the time the record-on-appeal is transmitted to the Court, a party desires to present a motion to dismiss or to quash the appeal, a motion to affirm the judgment, for admission to bail,, for a!;Jtay pending_ appeal, for additional

;353Q

FLORIDA APPELLATE RUI.ES

security on the appeal bond, or for any intermediate order, the clerk of the lower court, at the request of such party or order of the lower court, shall transmit to the clerk of the Court certified copies of such of the original papers in the action or proceeding in the lower court as are needed for that purpose.

I. Correcting or Completing. Unless the record shows to the contrary, it shall be presumed, upon appellate proceedings, that the record transmitted to the Court contains all proceedings in the lower court material to the points presented for decision in the Court. If anything is omitted from the record-on-appeal by error or accident, the parties by stipulation, or the lower court, either before or after the record is transmitted to the Court, or the Court on a proper suggestion or on its own initiative, may direct that the omission be corrected. If any dispute arises as to whether any transcript truly discloses what occurred in the lower court, or is in conformance with any stipulation of the parties, the dispute shall be submitted to and settled by the lower court and the transcript made to conform accordingly.

m. Return to Lower Court. After final disposition has been made of an appeal, and the time for any further review or appeal has expired, the original papers comprising the record-on-appeal shall be returned to the clerk of the lower court.

n. Certificates. Certificates called for by this rule may follow the forms suggested herein.

Rule 3. 7 BRIEFS-FORM, CONTENTS AND FILING

a. Appellant's Main Brief, Service. At least 40 days before the d~te upon which the recordon-appeal is required to be filed in the appellate court, the appellant shall serve one copy of his brief and appendix upon the appellee and he shall file the original and one copy of his brief and appendix with the clerk of the Court, together with proof of service of a copy thereof upon appellee.

b. Appellee's Brief, Service. It shall be the duty of appellee within twenty days after a copy of appellant's brief has been served upon him to file in the appellate court the original and one copy of his brief and appendix and serve a copy thereof upon appellant. Failut·e of appellee to file his brief and appendix as required by these rules shall, unless otherwise ordered by the court prior to the d ?. te set fur oral argument, forfeit the right of said appellee to oral argument.

c. Appellant's Reply Brief. Service. Within 20 days after a copy of appellee's brief has been served upon him, unless otherwise ordered by the Court, the appellant, if he prepares a reply brief (which is not mandatory), shall serve the appellee with a copy and file the original and one copy thereof with the clerk of the Court, together with proof of service.

Without special order of the Court no reply brief shall be considered unless filed and served at least five days prior to the oral argument date.

d. Extension of Time for Filing. The appellate court, or the lower court may, for good cause, extend the time for filing briefs and appendices, but no briefs or appendices other than those prescribed above will be permitted, except by special order of the appellate court. A certified copy of any order entered by the lower court hereunder shall be filed by the moving party or parties with the clerk of the appellate court within five days after it is entered.

e. Style of Briefs. (1) Paper and Size. All briefs shall be

printed, typewritten, or duplicated in a clear, readable manner such as by mimeographing, on opaque, white unglossed paper. If printed, the briefs shall be 6 x 9 inches, or within one-half inch thereof; if typewritten or duplicated the briefs shall be on letter-size paper.

(2) Type and Spacing. The lettering in briefs shall be black and distinct type, double spaced and with margins no less than one inch. Lettering in script, or type made in imitation of handwriting, will not be permitted. Quoted matter shall be indented and single spaced.

(3) Binding, Titles. Briefs shall be bound in book form and stitched, if printed, or securely stapled along the left r>ide, if typewritten, with headings in capital letters, and, if printed, sub-headings in bold type of not less than eleven points.

(4) Cover of Each Brief. There shall be stated on the cover sheet of each brief the title of the Court, the style of the cause, the court from which it was appealed, upon whose behalf the brief is filed, and the names and addresses of the attorneys filing the brief.

(5) Length of Briefs. Briefs shall contain not more than 50 pages, whether printed or typewritten, exclusive of the appendices herein required, unless the court permits enlargement of the briefs.

f. Contents of Appellant's Brief. The appellant's main brief shall contain:

(1) A citation of authorities. 'fhe volume and page of both the official state and West Publishing Company Reports to be given when available.

(2) A topical index.

(3) A statement of the case and of the facts and points involved, in a clear and concise manner, with reference to the pages of the appendix, and also to the pages of the original record where there is any possibility that appellee may question the statement.

(4) Argument in support of the position of the appellant. This section of the brief shall

3534


contain a division for each of the points involved. Specific assignments of error from which the points argued arise should be stated, and if any reference to the original record or appendix is made, the page should be given.

(5) An Appendix, which shall contain a copy of the material portions of the order, judgment or decree appealed from or sought to be reviewed or enforced, together with any opinion of the court, board or commission, and any pertinent portion of any report of a master filed in the case. The appendix shall also conta in a copy of such parts of the original record material t v the points presented as the appellant desires the Court to read.

If the points presented on appeal arise in connection with testimony taken at the trial or hearing, the appellant shall incorporate such testimony in the appendix in question and answer form, as will best facilitate a clea r and proper understanding of the points raised; but the inclusion of immaterial substance in the appendix will not be permitted. Asterisks, or other appropriate means, shall be U!<ed to indicate omissions in the testimony of witnesses. Reference to the pages of the record-on-appeal shall be made and the names of the witnesses shall be indexed. If the transcript of the testimony is bound and paged separately it shall be sufficient to refer to the page:; cf the transcript appell ant desires the court to read without copying the same in the appendix.

The appendix may be in separate pamphlet or volume from the rest of the brief, but shall conform with the requirements of the brief as to paper, size, type, spacing, and titles . If it exceeds 50 pages the appendix shall be bound separately.

g. C('ntents of Appellee's BriPf. The brief of appellee shall be prepared in the same mflnner as the brief of appellant and in addition thereto shall contain:

(1) A ~tatPmPnt of the case and of the points involved, if the appellee disagrees with the statement of appellant.

(2) A statement of the facts which are necessary to correct or amplify the statement in appellant's brief insofar as it is deemed erroneous or inadequate, with reference to pages of the record-on-appeal.

(3) Argument on each point presented by appellant and such additional points 11s appellee desires to present and as fall within the assignments or cross-assignments of error.

( 4) An appendix, prepared in the same manner as appellant's appendix, containing a copy of such parts of the record-on-appeal as the appellee desires the Court to read, and as have not bPen presented in the brief or appendix of appellant.

h. Reply Brief of Appellant. The appellant may file a reply brief and may set forth in an appendix thereto such parts of the record-

on-appeal as he may wish the Court to read in view of the parts presented by the appellee.

i. Points Not Argued Are Abandoned. Such assignments of error as are not argued in the briefs will be deemed abandoned and may not be argued orally. However, the Court, in the interest of justice, may notice jurisdictional or fundamental error apparent in the record-onappeal, whether or not it has been argued in the briefs or made the subject of an assignment of error, or of an objection or exception in the court below.

j. When Appendices Unnecess!lry. Appendices may be omitted if the record-on-appeal consists of a certified transcript or stipulated statement of 75 pages or less.

k. Amicus Curiae. Any attorney who desires to file a brief in a cause pending in the Court, as amicus curiae, may do so if consent therefor in writing signed by the attorneys for all parties of record is first filed in the Court; or if, upon motion timely filed within 80 days after the filing of the notice of appeal, he is permitted to do so by the Court. Such motion shall state briefly the reason for the request and the persons or interests upon whose behalf he seeks to appear, and a copy thereof shall be served on all attorneys in the cause. The motion may be heard and disposed of any Motion Day, provided reasonable notice of such hearing has been served on the attorneys in the cause.

Rule 3.8 POWER OF LOWER COURT After the entry of an appeal, but before the

recorrl-on-appeal is filed in the Court. the things required to be don e in the lower rourt or appellate court and objections to things done, including the fixirg or extension of time within which they shall be done, shall be unrler the supervision of the lower court, subject to the control of the appellate court by motion on proper notice. A certified copy of any order entered by the lower court under this rule shall be filed by the moving party or parties with the clerk of the appellate court within 5 days after it is entered.

Rule 3.9 MOTIONS

a. Use. If no other procedure or pleading is specifically provided, requests to the court for an order or ruling shall be by way of motion filed with the clerk of the court and served on the opposite party or his attorney.

b. Motion to Quash Appeal. Where appropriate, the appellee may file with the clerk of the court, a written motion to quash the appeal on the ground that the same is frivolous or taken only for the purpose of delay.

c. Time For. Every motion on behalf of an appeJiee to quash or dismiss an appeal, to strike the record or any portion thereof shall be filed, and a copy thereof served upon the opposite party, on or before the day the appellee is required to file his brief.

3535


d. When Heard. Upon proof of such service and without fur ther notice to the opposite party, the Court will hear said motion on the first Motion Day thereafter, if a period of five days has intervened; otherwise the motion will be heard on the next succeeding Motion Day.

e. Briefs and Argument. The parties may file briefs in support of, or in opposition to, the motion any time before the hearing, and at the hearing they will be permitted to submit oral arguments if they desire, but no arguments will be permitted on motions to quash an appeal as frivolous unless such argument is requested by the Court.

f. Stay of Proceedings. When a motion is made as provided by this rule, further proceedings or the time for the filing of any paper or document in the cause will be suspended until the disposition of the motion. When the mo tion is disposed of, the cause will proceed under the rules unless otherwise ordered by the Court.

g. Evidence in Support of Motions. Unless the motion is ex parte, all affidavits or evidence dehors the record offered in support of any motion before the Court shall be filed prior to the hearing thereon, and copies thereof served upon the opposite party in time to permit thtoffering of counter evidence.

Rule 3.10 ORAL ARGUMENTS a. Application For. Oral arguments may

be allowed in any case appealed, or presented, to the Court if applied for at the time the applicant's first brief is filed. The application for oral argument shall not be incorporated in the briefs or other bound papers but shall be filed on a separate paper. The application shall be filed with the clerk and a copy thereof shall be served on the opposite party in the same manner that briefs are required to be served.

b. Time allowed. Not more than 45 minutes to the side will be allowed for arguments in the Supreme Court and not more than 30 minutes in the district courts; but this time may be enlarged, for good cause shown, provided application for enlargement is made prior to the time the case is set upon the oral argument calendar for hearing on a day certain. Not more than 10 minutes to a side will be allowed for argument on motions heard on Motion Day unless the Court enlarges the time for good cause shown by application filed by either party at least five days prior to the hearing date.

c. Participation by Attorneys. Not more than two attorneys to the side will be allowed to argue any case, except by special permission.

d. Duty of Attorneys. In oral argument, attorney for the appellantwill be expected to state briefly the position occupied by the appellant in the court below, whether plaintiff or defendant; the nature of the order, judgment or decree appealed from; the nature of the suit

in which the order, judgment or decree was entered, and at what point in the case it was entered; a short statement of the material facts upon which the order, judgment or decree was entered; and the points relied on by the appellant for the reversal of the order, judgment or decree appealed from.

An attorney's legitimate deductions from the evidence may be argued, but extensive reading from the evidence, books, records or briefs will not be permitted.

e. Court May Require, or Dispense with. Oral Argument. In its discretion the Court may require oral argument in any case even though the same has not been requested, may limit the time thereof, or may dispense with oral argument in any case even though request for oral argument has been made.

f. Time and Place of Oral Arguments. Unless otherwise ordered by the Court oral arguments on days other than Motion Days shall be held in the main courtroom and shall commence at 9:30 o'clock a. m., Eastern Standard Time.

g. Oral Argument, heard by Supreme Court en bane. Oral arguments will be heard by the Supreme Court en bane (seven Justices) in the following cases, to wit :

(1) Appeals from judgments imposing the death penalty.

(2) Appeals from final judgments or decrees directly passing upon the validity of a State Statute or a Federal Statute or Treaty.

(3) Appeals from final judgments or decrees construing a controlling provision of the Florida or F'ederal Constitution.

(4) In all cases when the writ has been issued and the matter is set for oral argument on a petition for certiorari to review a decision Of a court of appeal affecting a class of constitutional or state officers, or one that passes upon a question certified by a district court of appeal to be of great public interest, or one. that is in direct conflict with a decision of another district court of appeal or of the Supreme Court on the same point of law.

(5) Such other matters as shall be designated by the Chief Justice.

Nothing herein shall prevent the Court from sitting as scheduled if a constitutional quorum is present.

Rule 3.11 . PARTIES

a. Generally. Any party who shall feel aggrieved by a final decision, order, judgment or decree may take an appeal and all parties to the cause who are not named as parties appellant shall automatically become parties appellee: Any person or persons taking or joining in an appeal shall be the party or parties appellant, and all other parties shall be parties appellee;

3536 I.


regardless of the effect on such party or parties of any order, judgment or decree appealed from. As to any party against whom a judgment by default or a decree pro confesso has been entered in the lower court, the cause may proceed ex parte, but said party shall not be deprived by reason thereof of the right to file crossassignments of error.

b. Joinder in Appeal. If any party who is an appellee desires to join as an appellant in the appeal he shall file his joinder in appeal, within the time allowed by these rules for filing notice of appeal; and thereafter, within the time prescribed by these rules for such purposes, he may. if he desires, file such additional assignments of error and additional directions to the clerk of the lower court as he may deem necessary. Should an appeal be commenced more than 50 days after the rendition of the decision, judgment, decree, or order appealed from, an appellee shall be allowed ten days after being served with a copy of the notice of appeal within which to file his joinder in appeal and his assignments of error.

c. Dismissal of Parties. If any party wishes to be dismissed from the appeal, he shall present to the court, after 5 days' notice to the other parties to the appeal, a motion for his dismissal from the cause. If the Court determines that the cause can be decided without such party it may order that said party be dismissed and that the cause proceed to final determination; provided that any dismissed party shall be bound by the decision rendered.

d. Attorneys and Guardians Ad Litem Below as Such. Attorneys and guardians ad litem in the lower court shall be deemed attorneys or guardians ad litem of the same parties in the Court, unless others are duly appointed after notice thereof to the adverse party and the substitution noted of record.

e. Death of Parties and Substitution. (1) Voluntary Substitution. Whenever any

party to an appeal pending in the Court shall die, the personal representative of the deceased party may voluntarily come in and be admitted as a party to the appeal, and said appeal shall thereupon be heard and determined as other appeals.

(2) Involuntary Substitution. If the personal representative of a deceased party does not voluntarily become a party to the appeal any interested party may suggest the death and move for an order requiring the representative to become a party within twenty days or within such time as the Court may order.

(3) Publication of Order. A copy of such order shall be published within ten days after the entry of the order in some newspaper of general circulation in the county of the lower court, provided that personal service of a copy of the order upon the personal representative shall be deemed the equivalent of, and a substitute for, publication.

( 4) Dismissal or Revival. If the personal representative of a deceased party fails to come in when ordered by the Court to do so, the movant, if an appellee, may procure an order of dismissal, and the movant, if an appellant, may procure an order of revival of the cause against said personal representative in order that said appeal may be finally determined.

(5) Revivor Unnecessary. If any party to the appeal shall die after the cause is completely ready for decision, but before decision rendered, a revivor of the suit against the deceased party shall not be necessary.

(6) Constructive Service. If an appellee dies pending the appeal and service on parties interested become necessary, constructive service on such parties may be resorted to if personal service cannot be reasonably made.

Rule 3.12 ADVANCEMENT OF CAUSES

For good cause shown, or upon its own motion, the court may advance any cause for final hearing.

Rule 3.13 DISMISSAL OF CAUSES a. Dismissal of Causes When Settled. When

any cause pending in the Court is settled by compromise or otherwise prior to a decision on the merits, it shall be the duty of both parties to immediately notify the Court of such settlement by a signed stipulation for dismissal.

b. Voluntary Dismissal of Appeals. The appellant, or the appellant and appellee jointly where the appellee has assigned errors, may procure dismissal of an appeal at any time by filing with the clerk of the Court a notice for a dismissal.

c. Clerk's Duty. When an appeal has been dismissed, it shall be the duty of the clerk of the Court to certify the fact of dismissal to the lower court.

Rule 3.14 REHEARINGS

a. Time for. Unless further time is allowed, rehearings must be applied for by petition in writing within 15 days after the filing of the decision or order of the Court.

b. Contents of Petition. The petition for rehearing shall not assume a new ground or position from that taken in the original argument or briefs upon which the cause was submitted, and must set forth concisely, and without argument, the alleged omissions, oversights, causes or grounds on which it is based.

c. Service. A copy of the petition shall b~ served · upon the opposite party or counsel and proof of such service shall be transmitted to the Court with the petition. The petition for rehearing shall not be considered a part of the record in the cause, unless so ordered by the Court, or unless rehearing is granted. No oral argument will be allowed on the petition.

d: Rule Violation. In case of a substantial

3537


violation of any material provhdon of this rule, the petition will be stricken by the Court on its own motion and the contents will not be considered.

e. Only One Petition AJiowed. The petitioner shall be entitled to file only one petition for rehearing with respect to the particular decision and no further petition or motion will be received or filed by the clerk or considered by the Court.

f. Further Pleadings. The opposing party may file and serve a reply to a petition for rehearing within 5 days after he is served with a copy of the petition. No other pleadings shall be allowed.

Rule 3.15 MANDATE

a. Issuance of M:mdate. Unless the Court, by special order, shall otherwise direct. the clerk, upon the expiration of 15 days from the decision or order, shall issue such mandate or process as may be directed by the Court. When a judgment of reversal is entered which requires the entry of a money judgment on a verdict the mandate shall be deemed to require such money judgment to be entered as of the date of the verdict.

b. Extension of Time for Issuance of Mandate. If a petition for rehearing is filed in a cause, the time for the issuance of the mandate or other process shall be extended until the petition is denied, or, if granted, until the cause has been fully determined.

Rule 3.16 TAXATION OF COSTS a. Cost of Record-On-Appeal. Reasonable

costs for preparing the record-on-appeal by the clerk of the lower court may be taxed in the lower court after the filing of the mandate.

b. Where Taxed. All costs including appellate costs shall be taxed in the lower court pursuant to Jaw.

c. Reviewable by Petition. If any party shall feel aggrieved by any judl!'ment for costs, said judgment shall be reviewable in the appellate court upon petition, provided the petition is filed within twenty days after the entry of said judgment.

d. Petition and Notice - Requisite of. A petition to review a judgment for costs shall set forth with particularity the items of cost allowed by the lower court and t'Pe items complained of. A copy of such petition shall be serve::! forthwith upon the partv adversely affected, and proof of service shall be filed in the Court. The adverse party shall file his reply to the petition within ten days after service of the petition on him.

e. Attorney's Fees. Where attorney's fees are allowable by law for !'ervices in the appellate court the request therefor shall be presented by motion filed with the clerk of the appellate court at or before the time of filing

the party's first brief, and shall be disposed of at the time the case is disposed of on the merits, unless otherwise ordered by the court.

Rule 3.17 PENALTIES FOR VIOLATION

The violation of any of these rules shall subject the offending person to such penalties as the Court may impose.

Rule 3.18 COMPUTATION OF TIME In computing any period of time prescribed or

allowed by these rules, by order of court, or by any applicable statute, the day of the act, event or default from which the designated period of time begins to run is not to be included. The last day of the period so computed shall be counted, unless it is a Saturday, Sunday or a legal holiday, in which event the period shall run until the end of a next day which is neither a Saturday, Sunday nor a legal holiday. When the period of time prescribed or allowed shall be less than 7 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation. A half holiday shall be considered as any other day and not as a holiday. If an act be required to be performed on a day certain and such day fall on a Saturday, Sunday, or legal holiday, the act shall be performed on the next day which is neither a Saturday, Sunday, nor a legal holiday.

PART IV. SPECIAL AND EXTRAORDINARY PROCEEDINGS

Rule 4.1 REVIEW OF ADMINISTRATIVE BOARDS AND AGENCIES

All appellate review of the rulings of any commission or board shall be by certiorari as provided by the Florida Appellate Rules.

In appeals from compensation orders of the Industrial Commission the record shall be prepared in the foJiowing manner, rather than by the method provided in Rule 4.5 c: within 10 days after service of the petition on the Industrial Commi~sion and other parties to the cause, the Director of the Workmen's Compensation Division shall transmit to the Court the original record of the proceeding before the deputy commi£sioner which was reviewed by the full commission, the ori~inals of any motions or other instruments filed in connection with such review by the full commis!'ion, and the original order sought to be reviewed, which shall constitute the record for review by the Court. No service of the record for review hereby prepared shall be required.

Rule 4.2 INTERLOCUTORY APPEALS a. Application. Appeals from interlocutory

orders or decrees in equity, orders or decrees entered after final decree, and orders at common law relating to venue or jurisdiction over the person, may be pro~ecuted in accordance with this rule; provided that nothing contained in this rule shall preclude the review

3538


of such orders and decrees on appeal from the final decree in the cause.

b. Time for Filing. The notice of appeal, which shall designate the appeal as an interlocutory appeal, and assignments of error shall be filed within 60 days from the rendition of the order of decree sought to be reviewed.

c. Disposition. If it affirmatively appears that the appeal is frivolous. was not taken in good faith, was taken for delay, or is without substantial merit, it will be dismi~sed and the cost of the proceeding imposed on the appellant.

d. Record-on-Appeal. No record on appeal shall be required or permitted other than certified copies of the appeal papers and the judgment or order appealed from. The appendices shall contain full copies of all pleadings and other parts of the record needed to determine the appeal.

e. Briefs. Briefs and appendices shall be prepared, filed and served in accordance with Rule 3.7 except that appellant's main brief shall be served within 15 days after the notice of appeal is filed, appellee's brief shall be served within 10 days after he is served with appellant's brief, and appellant's reply brief shall be served within 5 days after he is served with appellee's brief. All briefs shall be promptly filed after service.

f. Hearing and Dispositions. The appeal may on 5 days notice be set for hearing on any Monday following the date for filing of t}1e last brief. The appellate court may reserve ruling until final disposition of the cause by the lower court.

g. Other Rules. Except as modified by this rule the other rules of the Florida Apnellate Rules shall apply to interlocutory appeals.

Rule 4.3 BOND VALIDATION PROCEEDINGS

Appeals may be taken in bond validation proceedings only from the final decree within 20 days after the rendition of such decree.

The procedure to be followed in taking and perfecting said appeals and the time within which such proceedings shall be t::tken sh:Jll be the same as that herein provided for interlocutory appeals, except that a certified transcript of the proceedings shall be filed with the appellant's brief and a copy served on opposing counsel. The opinion .and judgment shall be final after 10 days and the mandate shall issue forthwith if no petition for rehearing has been filed within said 10 day period. In the event a petition for rehearing shall be filed, the same shall receive immediate consideration by the court and, if denied, the mandate shall issue simultaneously with the denial of the petition.

Rule 4.4 A P PEA L S IN PROBA 'T'E AND GUARDIANSHIP PROCEEDINGS AND CASES INVOLVING ESTATES OF INFANTS

peals shall apply to appeals from final orders or decrees of county judge's courts pertaining to probate matters or to estates and interests of minors and incompetents.

Rule 4.5 EXTRAORDINARY WRITS: MANDAMUS, CERTIORARI, PROHIBITION, QUO WARRANTO, HABEAS CORPUS, AND STAY WRITS

a. Generally. (1) When Heard. All applications in origi

nal proceedings in the Supreme Court and district courts of appeal for writs of mandamus, certiorari, prohibition, quo warranto, habeas corpus, and other writs necessary to the complete exercise of the jurisdiction of the Court, as authorized by the Constitution, shall be made as herein provided.

(2) Writs Raising Issue of Fact Will Not Be Heard. When it appears that an applic::ttion raises questions of fact which will require the taking of testimony said application will not be entertained by the Court.

(3) Brief Served on Respondent. A copy of every brief required with any application shall be served on the adverse party.

( 4) Oral Arguments. Oral arguments on application shall be governed by the provisions of these rules.

(5) Notice. Except in habeas corpus and unless otherwise ordered by the presiding officer of the court, at least five days' notice shall be given to the adverse party of intention to apply for the issuance of any writ mentioned herein.

b. Mandamus. (1) When entertained. No original petition

in mandamus will be entertained by the Supreme Court unless a state officer, state board, state functionary, or an agePcy authorized to represent the public generally, is named as respondent.

(2) Petition. Application for a writ of mandamus sh ::t ll be by petition setting up briefly the basis for the relief prayed, and sh::tll be supported by brief, a copy of which shall be served on the respondent prior to the application.

(3) Issmmce of Altern~tive Writ or Rule. If the petition makes a prima facie case, the Court will issue the alternative writ, or a rule directing the respondent to show c::tuse on a day certain why an alternative writ should not issue.

(4) Respondent's Return and Brief. When the alternative writ has issued, the respondent, on or before the return day fixed therein, sha!J file such appropriate pleadings as he may deem proper, and a brief in support thereof. a copy of which shall be served on the relator on or be

The Florida Appellate Rules relating to ap- fore the time of filing.

3539

FLORIDA APPELLATE .RULES :

(5) Relator's Reply Brief~ . Relator shall be allowed not exceeding '10· days after the service of respondent's pleadings and brief to file a reply brief, and to serve a copy on the respondent; after which time the cause will be deemed rea.cj.y' for final disposition, unless further protf!edings are ordered py the Court.

c. Certiorari.

(1) Petition to Be Supported by Transcript and Brief. Application for writ of certiorari sli'iill' be~ by petition fiied in, the Court within 60 days from the rendition of 1the decision, order, judgment or decree sought to be reviewed. Unless otherwise ordered by the Court, it shall be a¢companied · by a certified. transcript of the record of the proceedings the petitioner seeks to have reviewed or s6' much thereof as is essential. Unless shown· by the respondent or his ·attorney to be necessary, no other record shaH be required. The petition shall contain a concise statement of the cause and the reasons re.lied on for granting the · writ. It shall be accompanied by a supporting brief prepared as {>1'9Yided by ,Ruk 3.7.

··, (2) Respondent to Be Served With Petition; Transcript and Brief. Unless otherwise ordered py the Court, a copy of the petition, tt~ms.;:ript, and brief .shall bE;! served on respondent or his attorney on· or · before the time the application is filed with the clerk of the Court .

.' (3) . Respondent's Brief_.:._When Filed. The respondent shall file his ,brief in opposition to the writ, and serve a. copy thereof upon the petitioner, within t:wenty days after he has been served with a copy 'of petitioner's brief~ .

( 4) Reply Brief. Petitioner shall file such reply brief as he deems necessary, and serve a copy of the same on respondent, within ten · days after he has been · served with a copy ·of respondent's brief.

(5} Oral Argumen~. .Except hearings for review of Workmen's Compensation orders the petition shall be set down for oral argument as directed by the Court on some motion day after the time allowe!l petitioner herein to file his reply brief; and, unless further proceedings are ordered by the Court, the cause shall be finally disposed of witliout further ora! argument.

1. .. •• • ,

.Review of Workmen's Compensation Orders pursuant to statute and . Rqle 4.1, shall be set for hearing on regular oral argument days in i;L<;cord with the provisions of Rule 3.10(a)-(e).

to issue a writ of certiorari to review such ded~ sion. ..

' The petition for certiorari under this . rule shall be filed in the Supreme Court within 60 days from the rendition of the order; d;ecisiori or judgment of the district court of appeal. The petition shall set forth briefly and cleiuly the grounds for invoking jurisdiction of the Supreme Court and the facts ;relied upon for the issuance of the writ. Unless the district court shall otherwise direct for : good cause shown after notice .and hearing, a petition· for > cer:. tiorari filed in the Supreme Court ~within 15 days · from the date of. the filing · of the order, decision or judgment · sought to he .r.eviewed or within 15",days from the date of the disposition of a petition for rehearing shall. a\l.Jomatically stay further proceedingsJ i~t the district court and the 'trial court until the disposition of said petition by: .. the . ~upr.eme C<,mrt; otherwise such petition for certiorl\,ri shall operate as a stay of such proceedings only upon the order of the Supreme Court after due .notice to the adverse party. ·

Only so much of the record as shall · be · nee" essary to show jurisdiction ~in: the · Supreme Court and establish facts relied ·upon · by the petitioner shall.be attached to or filed with the petition. See rule 7.2 i (Forms} for suggestions as . to . proper portions .· of ' record to be transmitted with petition for certiorari,

Copy of petition with certificate of filing the same in the Supreme Court shall be filed in the district court of ap.peal. . . . .

Copy of petition, supporting porti~n~ -.of the reco.rd and brief shall be served on respondent or his attorney on or before the time petition is filed with the· Clerk of the Supreme Court; The respondent shall file · hJ~ brie~ -in opposition to the' writ and 'serve a · copy thereof upon the petitioner with~n 20 days after he }).as been sehred with a1 copy of the. petition, supporting portions 'Of the record and. brie~ of p~titioner.

The Supreme Court shall consider the petiti.op, supporting rec01·d or portions thereof and britifs and if the Court shall not have jurisdiction or if the petition is without merit, shall deny the same. If the Court determines to entertain further proceedings, the · Court will, set the same for oral argument ' on a day certairl and at said time may order the filing of such further record or · briefs as it may def,!rri · desir• able for proper disposition of the cause, or that, upon motion of either party, it may determine i~ essential therefor. 1

(6) From District Court to Supreme Court. d. Prohibition. " Where any decision of a district court of ap- . (1) Petition. Application for a writ of pro" peal (1) affects a class of constitutional or hibition shall be by suggestion, arid · shan be state officers, or (2) passes upon a question supported by brief, a copy of which shall be certified by such d.istrict court to be of great served on the respondent. public interest, or (3) . is in direct conflict with a decision of another. district court of appeal or (2) lssuarice of Rule. If the suggestion of tlie Supreme Court on the same point of law; :rpak~s a prima facie case the Court will issue a petition may be filed with the Supreme Court rule directing the inferior court to show 'cause

s5~d

FLOIUDA APPELLATE RuLE's

on a day certaiirr ·why the writ as prayed for should not issue; ·-and such -rule· shall operate as a supersedeas when the same ll'as been issued ~nd notice thereof given .to respondent. ·

· (3) Responderft's Return and· Brief. On or before the return day fixed in the rule, the respondent shall file such appropriate pleadings as he m'ay deem proper, and a brief in support thereof, . a copy of which shall be served on relator on or before the time the brief is filed.

( 4) Relator's Reply Brief. Relator shall be allowed not exr.eeding ten days after the serv~ ice of respondent's pleadings and brief to file a reply brief, and to serve a copy on the re~ spondent; after which time the cause will be deemed ready for final disposition, unless fur~ ther . proceedings are ordered by the Court.

e. Quo Warranto: (1) By Whom Instituted. Proceedings in

quo warranto, including informations in the nature of quo warranto, may be instituted by petition or information in the name of the State by the Attorney General, or by any person claiming title to the office or franchise on the refusal of the Attorney General. .

(2) Governed by Rules. on Mandamus. The rules governing mandamus as to pleading, fil~ ing briefs, and final disposition of the cause .shall apply to and govern quo warranto.

f. pabeas Corpus. (1) Issued by Whom. A writ of habeas cor~

pus or· an order to show cause may be issued by the Court, or by any justice or judge thereof, in the·manner provided by law.

(2) Notice to. Attorney General. If the val~ ~dity of any_ statute, or criminal proceeding or -conviction, is attacked, notice of the issuance <>f the writ shall be given to the Attorney Gen~ -eral. · (3) Respondent's Return and Bi:ief. If the writ is issued an early return date shall be set by the Court. , On or before said return date the ·Officer holding custody of the applicant shall file his formal return, which may include a motion to quash, and his brief, and serve a copy thereof upon the applicant.

(4) Applicant's Brief. · Within 10 days after the 'service of 'respondent's · return and brief upon him, the applicant may file a brief, and such-- pleadings as. he may deem necessary, and shall serve a copy thereof upon the respondent.

. (5) - Respondent's ! Reply Brief. If the appli~ :cant's brief contains any matter not covered by the respondent's brief; the respondent shall ,have . 5. days after he has been served within whi~h to file a reply brief, and· to serve a copy :On the petitioner.

' ( 6)' · · Firuil Disposition. · In the absen.ce .Qf a motion to quash or a motion for ·discharge not~

withstanding the retutn', issue .sh,all be deemeq }oiried on the return, and the cau·se shall pro~ ceed to, final disposition 'in acco'rd'ance with thi~ rule, unless further proceedings are ordered by the Court. · . · · . ''

g. Constitutional Wr~ts. ' . . . , ; (1) After Appeal and Notice~ App'licatibti

for constitutional or· other writs necessary'i to the complete exercise of the jurisdiction of the Court will be entertained only after reasonable notice to the adverse . par.ty . . No such· petition will be entertained unless an appeal has been commenced, and then only when. it is made clearly to appear that a supersedeas order. ep.~ tered by the lower court wm not .cpmplj:!tely presen;e the pourt's jurisdi.ction., or that the lower court has erroneously refus,ed · to ente.l1' such an order.

(2) Fiiuil Adjudication on. Merits. When.• If it should develop on the application for the writ that·the ends of justice will be best served by disposing of the cause ,on the merits, ,the Court will so determine, allow the attorneys time to file briefs, and. dispose of the cause on the merits without further arguments.

~uie 4.6 CERTIFIED QUESTIONS ' .· -~ 1 a. When Certified. When it shall appear. to

a judge of the lowfi)r court that there is invQlved in any cause pending before him que13ti<?ns or propositions of law that are determinative of the cause and are without controlling precedent in this state and that . instruction from the Court will facilitate the proper disppsi.tion of the cause, said judge, on his own motion or on motion of either party, may certify said ques~ tion or proposition of law to the Court for instr'uction.

b. Limitations On. Only questions or propositions of law that are definitely and concisely stated a'nd' that cart be answered without regard to other issues in the cause will be considered by the Court. The certificate shall not be employed in such a way as to affect the juris~ diction of the appellate court or the •lower court, and must be limited to those cases in which instructions will facilitate the final disL position of the cause. ·'

c. Contents of Certificate. The certificate shall contain the style of the . case, a "State,. nient of Facts" showing the nature of thf'l cau~~ and . the circumstances out of which the que·s;. tions or propositions of law . ari&e, . and the "Questions" of law to be answ'ered. ·

·. ,. ... . . d. Preparation ·of Certificate. The certifi

cate may be prepared by · stipulation, or as 'di~ rected by ·the lower tourt judge, upon due notice. When prepared and signed by the judge\ it shall be endorsed and certified to the · C0urt by the clerk of the lower court under his official . seal.

e. Costs of Certificat.e. If sufficient ,reason therefor is shown, the Court may require 'the

3541


entire record to be sent up and decide the controversy as if it were on appeal. The costs of the certificate and filing fee shall be divided equally between the parties, unless otherwise ordered by the Court. If the entire record is sent up and decision rendered as on appeal, costs shall follow the general rule pertaining to the taxation of costs.

f. Briefs and Argument. When the certificate is filed in the Court, briefs of all parties shall be filed within fifteen days after the certificate is filed, unless otherwise directed by the lower court.

g. Oral Argument. Oral argument may be granted on application, in which event the matter will be set for hearing either on a Motion Day or on an oral argument day as the Court shall direct.

Rule 4.7 APPELLATE REVIEW BY CIRCUIT COURTS

The Florida Appellate Rules shall govern procedure in the circuit courts in the exercise of their appellate jurisdiction. The circuit court may on motion showing the need therefor. after notice and hearing thereon, modify or dispense with any of the steps to be taken after filing of the notice of appeal or the institution of the proceedings for review. Any such order shall prescribe all modifications in the entire proceeding throughout the cause on review. Filing fee for such an appeal or review shall be the same as the fee for filing a cause in the circuit court and shall be by check or money order payable to the clerk of the circuit court.

PART V. SUPERSEDEAS ON APPEAL

Rule 5.1 SUPERSEDEAS DISCRETIONARY WHEN APPEAL IS FROM INTERLOCUTORY ORDER

When it shall be made to appear to the lower court that an appeal to review an interlocutory order or decree in equity has been or is about to be taken to the court, the lower court may, in its discretion, grant a supersedeas or stay upon appellant's giving a good and sufficient bond conditional that such appeal shall be taken within ten days, and to pay all costs, damages and expenses occasioned by reason of the ,::ta:v of proceedings, together with such other and further conditions as may be fixed by the lower court in the event the order or judgment of which a review is sought, is not quashed, modified or reversed.

Rule 5.2 WHEN APPEAL IS FROM FINAL JUDGMENT OR DECREE

Every appeal taken to the Court from a final decision, judgment or decree shall operate as a stay or supersedeas upon posting bond under tht> conditions specified herein.

Rule 5.3 SUPERSEDEAS AS OF RIGH'T' a. Money Judgment or Decree. If the ap-

peal is from a final money decision, judgmeni or decree the stay or supersedeas shall be as of right upon the posting of the bond.

b. Probate and Guardianship Procet>dlngs and Cases Involving Estates of Infants. Every appeal in probate, guardianship or involving estates of infants shall, as a matter of right, operate as a supersedeas if the appellant, within the time limited for taking the appeal, files in the office of the clerk of the lower court a supersedeas bond, with good and sufficient personal sureties or corporate surety approved by said clerk, the terms, conditions and amount of which bond shall have been fixed by order of the lower court upon notice to the appellee; provided, that for an appeal from an order appointing or removing an executor, administrator, guardian or curator to operate as a supersedeas or have the effect of placing or keeping the estate in the possess ion of the party appealing, bond shall be required sufficient in amount to cover the full value of the estate.

Rule 5.4 SUPERSEDEAS OR STAY OF INDUSTRIAL COMMISSION ORDER

In all reviews of compensation orders of the Florida Industrial Commission, the Commission may grant a supersedeas or stay upon petitioner's giving a good and sufficient bond as provided in this rule, conditioned to pay the amount of the award, interest and costs, if the Commission shall be affirmed by the Court; provided, however, that if an employer who is petitioner has secured the payment of benefits of the Workmen's Compensation Law to his employees no bond shall be required. The interest shall not exceed six per cent of the amount of compensation due and payable at the time the order of the Court is filed with the Industrial Commission, and shall be paid at the same time as, but in addition to, such compensation.

Rule 5.5 MOTION AND ORDER FOR SUPERSEDEAS TO STAY FINAL JUDGMENT

If a party desires to supersede a final decision, jud~ment, order or decree, he shall, at the time the appeal is taken, or at any time prior to filing the record-on-appeal in the Court, apply to the lower court for :m order fixing the amount, terms and conditions for good and sufficient bond to be payable to the adverse party.

Rule 5.6 "GOOD AND SUFFICIENT BOND .. DEFINED

A "good and sufficient bond" shall be taken to mean a bond with a principal and two good and sufficient personal sureties, or one surety company, if it is authorized to do business in the State of Florida, when and if approved by the clerk or judge of the lower court or an officer authorized by the order granting the stay or supersedeas.

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Rule 5.7 BOND WHEN JUDGMENT IS FOR RECOVERY OF MONEY NOT SECURED

When the decision, judgment, order or decree requires or provides unconditionally for the payment or recovery of money, the bond shall be conditioned to satisfy the judpment or decree or any modification not increasing the amount thereof, in full, including costs, interest (if chargeable), and damages for delay, in event the apperd be dismissed or the judgment, order or decree is affirmed.

Rule 5.8 BOND WHEN JUDGMENT IS FOR RECOVERY OF MONEY OTHERWISE SECURED

When the decision, judgment. order, or 'decree is for the recovery of money otherwise secured, the bond sha11 be conditioned to pay costs on appeal, interest (if legally chargeable) and damages for delay, together with such other and further conditions as shall be fixed by the Court.

Rule 5.9 BOND WHEN JUDGMENT IS OTHER THAN FOR MONEY

If the decision, judgment, order or decree is in whole or in part other than a money judgment, order or decree, the elements to be considered in fixing the amount and conditions of the bond shall be the cost of the action, cost of the appeal, interest (if chargeable), damages for delay, use, detention, and depreciation of any property involved.

Rule 5.10 REVIEW OF ORD~R WHEN ARBITRARY OR UNREASONABLE

If the lower court refuses to gr:mt a supersedeas or stay, or if any bond required by said court is deemed to be arbitrary or unreasonable or such as is for any other reason not proper, the order of refusal, or the order fixing the terms and conditions of the bond, may be reviewed and over-ruled, modified or discharged by the Court on motion, providerl reason;:~ ble notice of the hearing on said motion is given to the adverse party.

Rule 5.11 JUDGMENT AGAINST SURETY By entering into a supersedeas or stay order

bond given pursuant to these rules, or any statute or order of court, the surety submits himself to the jurisdiction of the lower court, and his liability thereon may be enforced by said court, after motion and citation, without the necessity of resorting to an independent action.

PART VI. CRIMINAL APPEALS

Rule 6.1 APPLICABILITY OF PART VI

Appeals in criminal cases to the Supreme Court, the district courts of appeal and to the circuit courts (including appeals from municipal courts), shall be prosecuted in accordance with Part VI of these rules and, except as herein stated, with such provisions of other

parts of these rules as are not inconsistent with the provisions of Part VI.

Rule 6.2 WHEN APPEAL TO BE TAKEN BY DEFENDANT

Any appeal by the defendant shall be taken within 90 days after the judgment is entered, or from the judgment or sentence, or both, within 90 days after the sentence is entered.

Rule 6.3 WHEN APPEAL TO BE TAKEN BY THE STATE

An appeal may be taken by the state only within thirty days after the order or sentence appealed from is entered, except that when the defendant takes an appe:1l from the judsrment the state may~ not later th:m ten days after the defendant files his assignments of error and serves a copy thereof, take an apne:1l authorized by Section 924.07 ( 4), Florida St11 t~1tes. Wh.en an appeal is taken by the state by fihng a notice of appeal, a filing fee of $25.00 shall be transmitted to the clerk of the appellate court by the Board of County Commissioners of the county in which the trial court is located.

Rule 6.4 HOW APPEAL TAKEN; NOTICE OF APPEAL

An appeal may be taken only by filing with the clerk of the lower court a notice in writing stating that the appellant appeals from a judgment, order, ruling or sentence, as the case may be and if the appeal be taken by a defendant, by' depositing a filing fee of $25.00, which may be by a check or money order payable to the clerk of the appellate court, with the clerk of the lower court unless the appellant is adjudged insolvent prior to the time of such filing; PT_"Ovided however, that the state may, at Its optio~, take an appeal authorize~ by Section 924.07 ( 4), Florida Statutes, by fihng cross assignments of error, with such clerk in lieu of filing a formal notice of appeal. The notice of appeal or cross assignments of error, as the case may be, shall be signed by the prosecuting attorney or by the attorney general when the state takes an appeal from a trial court, and by the attorney general when the state takes an appeal from a district court of appeal. Wh.en an appeal is taken by the defendant, the notice of appeal shall be signed by him or his attorney. The appellee may waive the right to notice that an appeal has been taken. Upon the filing of a notice of appeal, the clerk of the court in which it is filed shall, within 5 days after such filing, send a certified copy of such notice of appeal and the filing fee to the appellate court to which the appeal is taken and a certified copy to the attorney general together with a statement of the offense charged or convicted of.

Rule 6.5 NOTICE TO COUNS~L FOR STATE WHEN DEFENDANT APPEALS

A copy of the notice of appeal shall be served

3543


on .the prosecuting attorney when an appeal is taken by the defendant from a trial court, and upon the attorney general when it is taken by him from a district court of appeal.

Rule 6.6 NOTICE TO DEFENDANT WHEN STATE APPEALS

a. Service. If the appeal is taken by the state, except under authorization of Section 924.07 ( 4), Florida Statutes, a copy of the notice of appeal shall be served by the prosecuting attorney on the defendant, if his place of residence is known, and on the counsel, if any, who appeared for him at -the trial.

b. Service Under Section 924.07 ( 4). If, after the defendant appeals from a judgment the state takes an appeal authorized by Section 924.07 ( 4), Florida Statutes, by filing either a notice of appeal or cross assignments of error, a copy of such notice of appeal or cross assignments of error, as the case may be, shall be served on the appealing defendant, if his place of residence is known, or if an attorney has filed assignments of error in behalf of such defendant, upon such attorney.

Rule 6.7 ASSIGNMENTS OF ERROR AND DIRECTIONS TO CLERK

a. By Appellant. Within 20 days after the filing of a notice of appeal, except one filed by the state under authority of Section 924.07 ( 4), Florida Statutes the appellant shall file with the clerk of the' lower court and serve copies of his or its assignments of error and directions to the clerk for making up the record on appeal, upon the attorney of record for the state if the defendant be the appellant and upon the defendant or his attorney if the state be the appellant, the said directions to designate the portions of the record, proceedings and evidence to be included. The assignments of error and directions to the clerk may be combined in one document.

b. By Appellee. The appellee may, within ten days after such service is made, file with the clerk of the lower court and serve a copy of his or its directions designating additional portions essential to be included in the record on 1!-ppeal, upon the defendant or his attorney if the defendant be the appellant or upon the attorney of record for the state if the state be the appellant.

the Filing of Cross Assignments by the State. ' Upon the filing of cross assignments of error by the state for the purposes of its appeal under Section 924.07 ( 4), Florida Statutes, the appealing defendant may, within five days after service of a copy thereof upon him or his attorney, file further directions to the clerk and serve a copy upon the attorney of record for the state.

e. Extension of Time For Filing. The time for filing such assignments of error and directions to the clerk may be extended by either the lower court or the appellate court. There shall be no extension of the time for the state to appeal under authority of Section 924.07 ( 4), Florida Statutes, by filing cross assignments of error, but if the state has taken such an appeal by filing a timely notice of appeal, either the lower court or the appellate court may extend the time for the state to file its cross assignments of error.

f. Stipulation As to Contents of Appeal Record. The parties, by written stipulation filed with the clerk of the lower court, may designate the parts of the records, proceedings and evidence to be included in the record-on-appeal and may agree upon a condensed statement in narrative form of all or part of the testimony and, if thus done, the same shall be in lieu of and shall take the place of directions to the clerk for making up the transcript of record on appeal.

g. Formal Exceptions Not Necessary In Order to Assign Error. Formal exceptions to. rulings, orders or charges of the court are not necessary to support the assignments or cross assignments of error provided for by these rules; but for all purposes for which an exception has ever been necessary, it is sufficient that a party, at the time that the ruling, order, or charge of the court is made, or sought, makes. known to the court the action which he or it desires the court to take, or his or its objection to the action of the court and his or its grounds therefor; and, if a party has no opportunity toobject to a ruling or order at the time it is made, the absence of an objection shall not thereafter prejudice him.

Rule 6.8 TRANSCRIBING AND FILING NOTES OF REPORTER UPON APPEAL

When an appeal is taken by either the state or the defendant, the trial court shall, upon

c. Cross Assignments of Error When State motion of either party, direct the reporter to Files Notice of Appeal Under Section 924.07(4), transcribe his notes of the proceedings or such· Florida Statutes. When, after the defendant part or parts thereof as are requested by such appeals from the judgment, the state takes an motion. The reporter shall certify the correctappeal under authority of Section 924.07 ( 4) • ness of the notes and of the transcript thereof florida St~tutes, by filing a notice of appeal and shall file the notes and the transcript, duly instead of by filing cross assignments of error, certified, and two copies of such transcript with it shalf al~o file cross assignments of error and the clerk of said court. If the prosecuting atserve a copy thereof upon the defendant or his torney or the defendant or his attorney quesattorney within ten days after being served tions the correctness of the notes and/or with a copy of the defendant's assignments of transcript, the question shall be settled by the ~~~or. . . court. The cost of such stenographic report

'd. Additional Directions by Appellant Upon and copies shall be paid by the defendant if he

3544.'


takes the appeal and by the county if the state takes the appeal, except that if the state appeals under authority of Section 924.07 ( 4), Florida Statutes, after the taking of an appeal by the defendant, the defendant shall pay the cost of that part which he procures to be prepared and the county shall pay for that part which the state procures to be prepared; provided that, if an appealing defendant is adjudged insolvent, the county shall pay the cost of such transcript and copies.

The lower court clerk shall not be required to verify, nor shall he make a charge for, any stenographic copy furnished and certified by the reporter for incorporation in the record-onappeal. The transcript of the testimony may be bound and paged separately in volumes not to exceed 200 pages each.

Rule 6.9 PREPARATION AND TRANSMISSION OF RECORD TO APPELLATE COURT ON APPEAL BY DEFENDANT

a. Preparation. When an appeal is taken by the defendant, the preparation of the record shall be begun upon the expiration of the periods hereinabove allowed the parties for filing directions to the clerk or upon the entry of an order on objections thereto. An original and two copies shall be completed by the clerk as expeditiously as possible, within the time allowed for filing the appeal record in the appellate court, and delivered to the attorney for the defendant, or to the defendant if he has no attorney, even though the state may also have appealed under authority of Section 924.07 ( 4), Florida Statutes, by filing either notice of appeal or cross assignments of error. The original record shall be duly certified.

The transcript of record shall be bound, numbered, prefaced and indexed in the same manner as provided in Rule 3.6 f (2) and 3.6 f (3), and may be on either letter or legal size paper.

b. Filing and Service. Within forty days from the date an appeal is taken by the defendant, he shall file the appeal record with the clerk of the appellate court and serve a copy thereof upon the attorney general, even though the state may also have appealed under authority of Section 924.07 ( 4); _ Florida Statutes, by filing either a notice of appeal or cross as_signments of error, u'nless the time is extended by a judge of the . lower court or a judge . or justice of the appellate court, as the case niay be; provided, that no · extension of time for more than ten days shall -be granted without notice to the adverse party. If an extension is granted by the judge of the lower court, a certified copy of the order granting s4ch _extension shall be immediately transmitted to the clerk of the appellate court and to the attorney general by the attorney at whose instance it was procured or by the defendant if not procured at the instance of an attorn_ey.

c. App.roval by Lower Court. It shall riot be necessary for the record-on-appeal to _ be approved by the lower court but if any difference arises as to whether the record duly discloses what occurred, the difference shall be submitted to and settled by the lower court and the record made to conform to the truth.

d. Ommissions and Corrections. If anything material to either party is omitted from the record-on-appeal by error or accident, or is misstated therein, the parties by stipulation, or the lower court either before or after the record is transmitted to the appellate court, or the appellate court on a proper suggestion, or on its own initiative, may direct that the omission or misstatement shall be corrected, and, if necessary, that a supplemental record shall be certified and transmitted to the appellate court. '

e. Transmission of Original Papers. When· either the lower court or the appellate court is. of the opinion that original papers or exhibits' should be inspected by the appellate court or sent to the appellate court in lieu of copies, it' may make such order therefor, and for the safeJ keeping, transportation, and return thereof as it deems proper. The form shall be the same as that provided in Rule 6.9 a.

f. Clerk's Costs. When the defendant takes an appeal, the clerk's costs incident to the appeal shall be paid by the defendant, or by the county in case the defendant is adjudged insolvent. Rule 6.10 TRANSMISSION OF RECORD TO APPELLATE COURT UPON APPEAL BY STATE

a. Filing and Service. When an appeal is, taken by the state except under authority of Section 924.07 ( 4), Florida Statutes, the provisions of Rule 6.9 shall be applicable, except that the clerk of the lower court shall deliver the transcript of record to the appellate court and one c;opy to the attorney general and the other copy to the appellee, if his place of residence is known, or, if not, on the counsel, if any, who appeared for him at the trial, provided that, if the appellee's residence is unknown and no counsel appeared for him at the trial, the clerk shall hold the appellee's copy of the record subject to the appellee's demand.

b. Clerk's Costs. When the state takes an· appeal, except when it appeals under authority of Section 924.07 ( 4), Florida Statutes, after the defendant appeals from the judgment, the clerk's cost incident to the appeal shall be paid by the county. •

Rule 6.11 BRIEFS

_ a. What to Contain. Briefs shall be prepared as required by Rule 3.7; provided that it shall not be necessary that an appendix be included in or filed with the appellant's brief,i but if such be done, an appendix may be in.: eluded in or filed w~tp t~e appellee's brief.

~545


b. Time For Filing. Within thirty day!i after filing the transcript of record, the appellant Rhall file the original and one copy of his or its brief with the clerk of the appellate court and serve one copy on the appellee.

Within twenty days after a copy of the appellant's brief has been served upon him or it, the appellee shall file the original and one copy of his or its brief with the clerk of the appellate court and serve one copy on the appellant.

Within twenty days after service of a copy of the appellee's brief upon the appellant, the latter may file the original and one copy of a reply brief with the clerk of the appellate court, and serve one copy on the appellee.

When an appeal is taken by the defendant and thereafter the state appea ls under authority of Section 924.07 ( 4). Florida Statutes, the terms "appellant" and " appellee," as used in this rul~, shall mean the defendant and the state, respectively.

Rule 6.12 REQUESTS FOR ORAL ARGUMENT

Requests for ora I argument shall be made in accordance with Rule 3.10.

Rule 6.13 DISMISSAL OF APPEAL FOR FAILURE TO PROSECUTE

The appellate court may dismiss the appeal if the appellant does not prosecute it as required by these rules. When an appeal is dismissed, the clerk of the appellate court shall file with the clerk of the trial court a certified copy of the order of dismissal.

Rule 6.14 APPEALS IN CRIMINAL CAUSES TO HAVE PRECEDENCE

All appeals in criminal cases shall have precedence over other appeals and shall be placed first upon the calendar for hearing. Appeals in cases whet·e a sentence of death has been imposed shall have precedence over all other appeals.

Rule 6.15 BAIL PENDING APPEAL

a. Notice of Appeal Required; Review in Case of Noncompliance. The lower court shall make no order granting to a defendant bail pending appeal prior to the filing of a notice of appeal by such defendant, and any order made in violation hereof may be reviewed by the appellate court upon the motion of the state, supported by a certified copy of such order and the certificate of the clerk of the lower court that the defendant thereby granted bail has not filed a notice of appeal prior to the making of such certificate.

b. Application to Lower Court. The sufficiency of an application to the lower court for bail pending appeal shall be tested by applying the principles laid down in Younghans v. State, 90 So. 2d 308.

Denying. When the lower court denies bail pending appeal, it shall state in its order of denial the reasons therefor.

d. Review of Denial Upon Motion of Defendant. An order denying bail pending appeal may be reviewed by the appellate court upon the motion of the defendant, supported by a certified copy of such order and of a notice of appeal and the proceedings in the lower court concerning bail pending appeal, including any evidence relating thereto but not necessarily including a transcript of the trial proceedings.

e. Review of Order Granting Upon Motion of State. An order granting bail pending appeal may be reviewed by the appellate court upon the motion of the state, supported by a certified copy of such order and of the proceedings in the lower court concerning bail pending appeal, including any evidence relating thereto but not necessarily including a transcript of the trial proceedings.

Rule 6.16 SCOPE OF REVIEW

a. Generally. Upon an appeal by either the state or the defendant the appellate court shall review all rulings and orders appearing in the appeal record insofar as it is necessary to do so in order to pass upon the grounds of appeal. The court shall also r eview all instructions to which an objection was made and which are alleged as a ground of appeal, and the sentence when there is an appeal therefrom. The court may also in its discret ion, if it deems the interests of justice to require, review any other things said or done in the cause which appear in the appeal record, including instructions to the jury. The reception of evidence to which no objection was made shall not be construed to constitute a ruling by the court.

b. Sufficiency of Evidence. Upon an appeal by the defendant from the judgment the appellate court shall review the evidence to determine if it is insuffic ient to suppClrt the judgment where this is a ground of appeal. Upon an appeal from the judgment by a defendant who has been sentenced to death the appellate court shall review the evidence to determine if the interests of justice require a new trial, whether the insufficiency of the evidence is a ground of appeal or not.

Rule 6.17 APPLICATION FOR REHEARING

Application for rehearing shall be made in accordance with Rule 3.14.

PART VII. FORMS

Rule 7.1 APPROVED FORMS

The forms set forth in these rules are approved. Departures from the suggested forms shall not void papers otherwise sufficient.

Rule 7.2 FORMS

c. Lower Court to State Reasons When

3546

The following forms are approved:

FLORIDA APPEI,LATE RULES

a. Appeal, Notice of. The notice of appeal shall be substantially in the following form:

(Title of Court) A. B.,

Plaintiff, vs.

C. D., et al., DefendantR.

NOTICE OF * APPEAL The defe·ndant, C. D., takes and enters his *

appeal to the -------------------------------- __________ _ Court of Florida to review the order, judgment or decree of the Circuit Court for ----------------- -- __ _ County, bearing date the -------------------------------- day of ------------ ----- ---- ------ , 19 __________ , entered in the above styled cause and recorded in .. ·---------------Book ---- ---------------, page __________ , on the . _______ _ day of ----------------- , 19 _______ , and all parties to said cause are called upon to take notice of the entry of this appeal.

Attorneys for C. D. *Im;ert "interlocutory" if an interlocutory

appeal.

b. Appeal, Joinder In. A joinder in appeal shall be substantially in the following form:

(Title of Court) A. B.,

Plaintiff, vs.

C. D., et al., Defendantll.

JOINDER IN APPEAL The defendant, E. F., hereby joins in the

appeal taken and entered by the defendant, C. D., to the ______ _ ___ . __ __ Court of Florida by notice of appeal filed in the above styled cause on the __ day of . __ __________ ____ __ , 19 __ , to review the order, judgment or decree of the Circuit Court for __ ----------------------------· County in said cause, bearing date of ______________ _ day of , 19 ______ and recorded in the records of said court in ----------------------------------Book ----------------------------------· page -------------------------·

Attorneys for said E. F. c. Bond in Criminal Appeal. Bail bonds in

criminal appeals shall be in the following form: In the ------------------------- _________ _ In and for _____________________ County, Florida.

STATE OF FLORIDA, ) Plaintiff, )

vs. ) BOND ON APPEAL ----------------------------------- , )

Defendant. )

KNOW ALL MEN BY THESE PRESENTS that we ------------------------------------ ___ as principal and .. ---------------------------- as surety · . __ _ ___ ___ _ are held and firmly bound unto the State of Florida in the penal sum of $-------------- dollars

money of the United States of America for the payment whereof well and truly to be made, we bind ourselves, our heirs, executors, administrators, and successors, jointly and severally, firmly by these presents.

NOW THE CONDITIONS of this obligation are such, that whereas the said ___ , the defendant in the above styled and entitled cause, was at a term of the above named court on the ---------------------- day of ---------------------- , A.D. 19 __ __ ___ , convicted of the crime of ____ __________ ___ _ whereupon a final judgment was thereafter made and entered against the said defendant and whereas the said defendant being dissatisfied with the judgment and sentence of said Court did on the ________________ day of ------------· A.D. 19 __ sue out an appeal to the ________ ____ _ Court of Florida.

NOW THEREFORE, if the said ------shall diligently prosecute his said appeal and in the event that said appeal be dismissed or the said judgment and sentence be affirmed, shall be personally forthcoming in the above named court to answer and abide the final order, sentence or judgment which may be passed in the premises by virtue of the appellate court, and, in case the cause is reversed and remanded, shall personally be and appear at the next term of the said court, in which the case was originally determined, thereafter to be held (from day to day and term to term) to answer in the premises and not to depart from the court without leave thereof, then this obligation to be null and void else to remain in full force, effect and virtue.

SIGNED AND SEALED AT -------------------------• FLORIDA, this ------------------ day of ----------------------• A.D. 19------------

Principal

Surety

SurPty Received, approved and filed this _____ ______________ day of --------------------, A.D. 19 ________ _

Clerk AFFIDAVIT OF BONDSMEN

STATE OF FLORIDA ) COUNTY of _______________ __ _______ )

(SEAL)

(SEAL)

(SEAL)

Before the undersigned, who is authorized by the laws of the State of Florida to administer oaths, personally appeared ··--• who, being by me first duly sworn says that he is one of the sureties on the annexed ba ii bond; that the following is a true and correct schedule, in writing, showing and setting forth a full and detailed description of his property and its value, to-wit:

Description: Encumbrances: Its Value:

8547

FLORIDA APPELLATE ·RULES

~-;---, _____________ ._ _________ ~-· __ __:_~ ____ ..:._. ____ ..,. __ _,___._ .

_:. ________________________________________________ i, __ .:. _______ i

and that he owns, and i s possessed, in his own: r~ght and in his own name of visible property; situated in ------------------~.:__ _ _____ :..._~_: __ : County in• the State of Florida, subject to levy and sale under judicial process, equal in value, over and ::tbove a ll his just debts and liabilities, and . in excess of all encumbrances, to a sum double the amount of his liability as surety on such bond; that he has execut~d as surety other' bonds during the next precedip.g six months of the following character, descriptions and ~mounts on which he is now liable; to wit :.

Description of Bond: - ; Amount:

• •J

-------- --------------':"'--- ---------7--------:--------------------------------~Jilid that he owns .and possesses, in his o'\Vn right and fee simple, "real estate, · situated in; -~------------------------------~-~---- County; Florida; subject to levy and sa]e under judicial process, of a real and substantial value, over. and above all encumbrances thereon, and 'over and 'above: all his debts, liabilities and homestead exemp:.:: iions, including all his liability on any and ·a.nJ such bonds previously executed by him an<( still in force, of at least double the amount o!, the annexed bond, and that a full and complete: ~escription of all such real estate, . together: with all encumbrances thereon, is heretofore' stated. . . . '

---------------------------------------------------.-; (Signature of Surety)

. Sworn to and subscribed before me -------~---~------------------------------ this ____________ day of _.; __________________ ; A.D. -------------------- ; / .,, -------------------------------------------------------------------------(Signature of Officer administering oath) I . , -·

'·' d. Certificate of Ch~rk When Original Pap~s: Are Used. The clerk's certificate to be appended to the record-on-appeal, when original papers are useq, shall be substantially in the following form: ·

CER';('IFICATE OF CLERK

STATE OF FLORIDA ) ·· COUNTY OF _________________ )

I, ----------------------------------------------------• Clerk of the "1---~---------------C-~------ -------'-'"-'--------"---------:-. .:.~---- · Court for the County of ---- ------------------------------C----------~------ • ~tate of Florida, do hereby certify that the foregoing pages 1 to -----------~ inclusive contain ~ correct copy of the judgment in -the case, of _ _c,___________________________________ vs. -------------~---: __________________ , acnd a true and correct recital and inclusion .of ~Jl such orig:inal p~pers and. ·proceedings in said cause as appear from the records and files of my office that have been directed to be included in said record by the dire.ctions furnished me. (Pages ---------------------- to --------------------inclusive embrace the transcribed notes of the

t;eporter . ~s,_ made at t he trial,..a,nd certified to me b,y: })}~.}* ;: :. . . . , : ·

In Witness W~ereof, l have l).ereunto set my hand and affixed the Seal of said Court thi~ ----------------------- day of ____________________________ ,_._, 19----~~

Clerk of the ____ --------------------------------------court for ___________ ------------------------------- County

e. Certificate · of, .. Clerk When Transcript Used Instead of Original Papers. The clerk's certificate· :to' b'e 'appEmd.ed: .to the ·record~onappeal, when a transcript is used instead of the original ·papers , 'Shall be substantially in the following form : '·, , :

~':I'A'JiEQF~ ·FLQRIDA · ) COUNTY OF ;, __ _: __ ~~~"·-----~----) · ..

~~~;:;:~----o:-;;.~~:-~~-~~:_;.-:;_~_-~---~~=~-"c~-;-~t-fo~1~: c;u~~; of --------------------------------------------• State of Florida, do hereby certify that the foregoing pages 1 to ____________ c_~_::_t .,i-~el~sive. contain a correct tran-~f;'-:iP.t ~-~ t~~ re~o..r~ of ~fe. j,ydgment in the case 0 ----------------------------- -- vs. --------------------------and a true and correct recital aDd copy 'of all ~uch papers 'and proceedings in said cause as appea,,rS; ft.:Pm:tbe records and files of my .office that have been ~irected tq be included in said record by the directions.'furnished me. (Pages ---·-------------------- to -------------------- inclusive embrace the transcribed notes of the 'reporter · as made at the trial and certified to me by him.)*

In Witness Whereof , I have hereunto set my hand and affixed the Seal -of said Court this ______________________ ..,: day of :-~-~-~---------------------- 19 __ _ _

. -.-.--;;-:-:~-,-~---;;-:;---,--;-,-,..-,.-1- - _____ ._ ___________ __________ .;. ____ ,.. _________ _

· Clerk 6f the ; --~----------:---~--------"---------- Court for . ----.~-.- --~-:-,----~-.-- ·~--------,:~------------------- County

.(*ParenthelXcal matter to b.e included if applic~ble.~ ·. . ..·. .. . . :. : . · . ·

f. Certific~te of Clerk On Stipulated StateJ,ll~nt . .. ~f the .record-on-appeal is prepared pursuant to stipulation,the clerk's certificate shall be substaritiaJly) n ,the foiiowing form: ·

.. CERTIFICATE OF CLERK . : - -, . ' (' ~- .. ' . . ...

ON STIPULATED STATEMENT [ .' • ' t 1 ' : \ • ' ' ·i

STA'I;E OF·J"LPRIPA . ) COUNTY OF ____________ __________ )

, , - ' \ · ·' I '

~-: -~: __ _-_~_:_-_-_~-~~_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_~-----~---;~~:--~----~-_-_-_-_-_-_-_-_-: __ ~~-~-~~- 06o~~ for the County of ------ ------'------------------------• State of li:lori_da .do . . bereby certify that the foregoing ' . . 1 t' ' ' . f • 1 . . r::ee~nd ~~~~~~~-:t~~~~J~ipt-~~n~h~s;::o~~n~~1rh: judgment in the case df --~--~----------- -------------------vs. ::..~~--~-~:~:-~:.::::.;_ __ ~~~-~-::~~-:~~~ -~-:~ iand a true and correct COPY. of the -stipulation prepared and signed by the parties to ·o the :aaid cause wherein it was agreed :.j;hat ·, tbe fact s, pleadings, assignments or ,gq~stions, pro.ceedings .and recitals therein

. ~hould constitute the record-on-appeal and were

3548

(FLORiDA-APPELLATI(RULES

all that was ess~ntial for the appellate court to ·review a nd adjudicate-the quest ion raised.

In Witness Whereof; I have hereunto set· my hand and affixed the Seal of said Court ' this

_.,---------- -·~~- ------·---- ' 9-~r of c~j---~~-~---~------------ · 19~~~- ----

Clerk of the :_: __ ~_:: ____ ~----~-~---------~---~-~-- Court for · -·----"----------"--'.:---~-----:, ___ ---~-~-------:";cs.::: County

. ;· : .: : ... . . : . . ; . . ·.

g. Reporter's Certi.ficate. If the authenticated transcribed notes'-ofthe person reporting the . proceedings in ,the court belo'.V are to be embraced in the recoi:d~on-appeal, . the certificate of slfid reporter, trarismitti'n~ such notes to the clerk of the . lower court shall be substantially ~n the folfowiri~ form ; . · · ·

CERTIFICATE OF REPORTER ' - ;~

STATE OF FLORIDA ) COUNTY OF __ ;,!___: ______ " ________ )

I, .--------.-------·---:--~------------------------"-----· _ do- h~reby certify that the case of ·---------------------------------- vs. ---------------------------------------------------- was tried on the ~---------------· day of : _____ ; __ ~:---~-------~------------• that I was authorized to and did report in shorthand the proceedings and evidence· in ·said trial, and that the foregoing pag~s, numbered 1 to -----~----inclusive constitute · a · true and ' correct transcription of my 'shorthand report of the · pro,:. ceedings of said cause. · .. · ·· . ·

In Witness Whereof, I have here.unto affixed my hand . this ·------~c.: day of c ______________ 19 _______ _

I ' ~-~~-~------------

Report.er .

h. Civil Supersep.eas .Bond.

(Title of Court) .. f

Plaintiff,

vs.

Defendant.

CIVIL SUPERSEDEAS BOND

KNOW ALL MEN BY THESE PRESENTS, That we, _________ : __________________________________ , as Principal, and ------------------------------- -------------------· as Surety, are held and firmly bound unto --------------------------• in the principal sum of --------------------------------------Dollars ($ ) lawful money of the United States of America, for the payment whereof, well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.

The condition of this obligation is such that whereas the above named - ------------------------------• Principal herein, has entered its appeal to the Supreme Court of Florida (or the District Court of Appeal) to review the judgment (decree or order) entered in the above styled cause under

date of the _: ___ c~_: __ _________ .:_:_:_: day of ----------------'• A.D., 195 _______ _____ , and filed in the records of the

~~~~~-~~-~~~-:~~--=~~=~~~~-~t--p-;g~--~~~~~~~~~~~~~~~~~~~~~~~=~~~~ thereOf; NOW THEREFORE, if it, the sai~ ----------------------~----- · Principal herein, shall satisfy ~any money judgment contained and set forth in said judgment, in full ; inCluding costs, interest, '.and damages for delay, in the event said appeal 'is dismissed or the said judgment is affirmed, then this obligation shall ' be null and void, otherwise to remain in full force, effect and ;virtue.

. SIGNED 'AND SEALED this ------------- ---- -- -------~ day of - --------------------------------• A.D., 195 ____________ , at "-------" _________ :_________________________________ County, FIori da.

___ c___________________________________________ ___ Principal

. -----c·------------------------------------- (Surety) ---------------------------------"---------- (Surety)

i. Petition for Writ of Certiorari.

.l . Ordinarily the only portions of the record requited to be attached to the petition for cer• tJqra:ri are :

1. Those portions of the decision necessacy: to show tpat such decision affects a class of constitutional or state officers, where that provision is invoked for review;

2. The decisions of the courts that are al':. leged to conflict with each other, where that provision is invoked. This may be by reference to th~ citation ()_f said~ecisions where they hay~ been reported m official reports. In those m; stances when the alleged conflict is not appar:. !=lnt. from the decisions, then so much of the record as shall be essential to demonstrate such ~::onflict may be brought up with the petition for certiorari. The Court · may, after granting the writ and setting the case for oral argument; order brought ·up such fu r ther portions of th~ record ' as it may deem'necessary. . . . ..

3. When the provision of the Constitution authorizing review upon questions of great public interest is invoked, the original record in the district court shall be filed with the petition. If the writ is granted by the Supreme Court and an opinion is filed, the Court shall order a certified copy of such record filed in the Supreme Court before the original record is returned to the district court of ·appeal and shall assess the costs thereof in such order.

IN THE SUPREME COURT OF FLORIDA

vs.

Petitioner ) ) ) )

Respondent )

PETITION F 0 R A WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL, SECOND DISTRICT

TO THE SUPREME COURT OF THE STATE OF FLORIDA:

Petitioner, -------------------------------- - -•

3549


presents this, his petition for a writ of cer tiorari and states :

1. Petitioner seeks to have reviewed an order (or decision) of the District Court of Appeal, Second District, dated the -------day of _____ _____ _______________ ____ _ , 195 ___ , and filed in the records of said District Court on the ----------------- day of __________ ---------------• 195 ____ , in ----- - -------------------- Book ----------------• Page

2. This petition is presented under and pursuant to Article 5, Section 4, of the Florida Constitution. l-l nd Rule 4.5c of the Florida Appellate Rules.

3. This petition is accompanied by a c.ertified transcript of the record of the proceedmgs, including the decision petitioner seeks to have reviewed, and a supporting brief.

4. The following are the facts of the case:

(Give in lettered sub-paragraphs and support statements by reference to the transcript)

5. On the foregoing facts the Court was presented with the following point of law:

(Here state point of law involved)

On this point of law the District Court of Appeal, Second Distt·ict rendered the following decision or holding:

(Here give ruling or holding of the district court of appeal whose decision is sought to be reviewed)

6. The same point of law was involved in the case of ----------------------------- V!-1. __ __ _ -------------------------------------- __ , decided by the District Court of Appeal, First District. on the day of -------------· 195 _____ . This decision was reported in -------------- So. 2d,

page -----------• and a copy of the decision ia attached to this petition as Exhibit I. The facts involved in ----------------- vs. ------------were as follows:

(Here state facts involved in the case from the other appellate district)

On these facts the District Court of Appeal, First District ruled as follows:

(Here set forth ruling)

7. The decision of the District Court of Appeal, Second District which petitioner seeks to have reviewed is in direct conflict with the above mentioned decision of the District Court of Appeal, First District. Because of the reasons and authorities set forth in petitioner's brief, it is believed that the decision hereby sought to be reviewed is erroneous and that the conflicting decision of the District Court of Appeal, First District is correct and should be approved by this Court as the controlling law for the State of Florida.

WHEREFORE, petitioner requests this Court to grant a writ of certiorari and enter its order quashing the decision and order hereby sought to be reviewed, approving the decision of the District Court of Appeal, First District, as the correct decision, and granting such other and further relief as shall seem right and proper to the Court.

Attorney for Petitioner Address

j. Certificate of Service. I do certify that copy (copies) hereof has

(have) been furnished to (here insert name or names) by delivery (mail) this -------------day of ----------------- , 19 _______ .

Attorney

S550