WINN & LOVETT GROCERY COMPANY, a corporation, v. M. W. LUKE, 156 Fla. 638

BROWN-, J.: This case is before us on a petition for the issuance of the common law writ of certiorari to review a judgment rendered by Circuit Court Judge Bayard B. Shields, one of the Judges of the Fourth Judicial Circuit, affirming a judgment of the Civil Court of Record of Duval County.

According to this transcript, the verdict of the jury was rendered on April 17, 1945, and the judgment of the Civil Court of Record was entered on May 15, 1945, whereas the appeal to the Circuit Court was entered and taken on May 11, 1945, four days before the judgment of the Civil Court of Record was entered, and three days before the motion for new trial was denied on May 14, 1945. So the appeal was taken prematurely. Doubtless the trial judge had previously orally stated that motion for new trial would be denied and judgment entered, but the record does not so show.

Furthermore, it would not have availed petitioner anything, as the law is well settled that a judgment is not effective, at least for purposes of appeal, until it is entered on the court’s minutes or other official record of the court’s actions. That this error in taking a premature appeal was due to a misunderstanding on the part of the able counsel for both parties is shown by the language of the notice of appeal, filed May 11, 1945, wherein it is stated that the appeal is taken from the judgment rendered on April 17, 1945, whereas no judgment was entered, according to this transcript, until May 15, 1945.

As far back as the case of Jacksonville, T. & K. W. Ry. Co. v. Boy, 34 Fla. 389, 16 So. 290 this court held that the judgment of a court must appear from its record, and in the absence of such record the appellate court can neither affirm nor reverse. In Ellis v. State, 100 Fla. 27, 129 So. 106, 69 A.L.R., 783, it was held that until a judgment is entered of record, there is no competent evidence of its rendition. And in the case of Foster v. Cooper, 142 Fla. 148, 194 So. 331, this Court, speaking through Mr.

Chief Justice CHAPMAN, said: “It is settled law in Florida that a judgment in an action at law is rendered when it is entered or recorded in the minutes of the Court,” etc., citing a number of cases. See also State v. City of Auburndale, 121 Fla. 336, 163 So. 698, Cates v. Hefferman, 154 Fla. 422, 18 So. (2nd) 11; and 4 C.J.S. 936.

The main contention of petitioner is that the Circuit Court’s judgment of affirmance should be quashed, because the appeal from the Civil Court of Record’s judgment was heard and decided by only one of the Circuit Judges at a time when there were five judges of said court, whereas under

section 26.54, F.S. 1941, the appellate jurisdiction of a Circuit Court having more than four judges shall be exercised by the judges of such court sitting in divisions. (See also chapters 20309 and 20361 Laws of 1941). Also, that the Circuit Judge was in error in holding that the plaintiff in the Civil Court of Record was entitled to recover punitive damages. Of course if the first contention is correct, the second need not be .considered.

But our view is that the appellate jurisdiction of the Circuit Court was never effectively invoked for the reasons already stated — that there was no judgment of the trial court in existence when the appeal to the Circuit Court was taken.

However, the contention that this case could not be considered and decided by the Circuit Judge, assuming that the appeal was effectively taken, raises a somewhat debatable question, because the appeal was submitted to and judgment rendered by one Circuit Judge without objection from either party, this question not having been raised until appellant’s motion for rehearing was filed about thirty days later. This motion alleged that Hon. Claude Ogilvie was commissioned as a judge of said circuit court on June 7, 1945 (as authorized by

chapter 22618, Laws of 1945), whereupon said court had more than four Circuit Judges; that the appeal was taken May 9, 1945, and was returnable June 29, 1945, and was actually lodged in the Clerk’s office on June 27, 1945, and that therefore the appellate jurisdiction of the court could not have been exercised by one Circuit Judge, as was done in this case. This motion for rehearing was denied by Judge Shields.

Of course jurisdiction of the subject matter cannot be conferred by consent or failure to object, but the statute requiring circuit courts having more than four judges to sit in divisions in the exercise of appellate jurisdiction cónteiriplates that a reasonable time should be allowed for the formation of such divisions. In this instance the Circuit Court, acting through its five circuit judges took formal action on Sept. 1, 1945, and created the two divisions for ■ appellate work contemplated by

Chapter 20309, Laws of 1941, and

Section 26.54, F.S. 1941; meanwhile, on August 6, 1945, the judgment of affirmance was entered by one of the Circuit Judges, Judge Shields, to whom this appeal, taken on May 11, 1945, had been submitted. This appeal was attempted to be taken to the Circuit Court before the act authorizing the additional Circuit Judge became a law.

If it was effective at all, appellate jurisdiction of the case at the time of the attempted appeal vested in some one of the judges of the Circuit Court at a time when any one of the judges could lawfully dispose of an appeal, and it is questionable that the commissioning of an additional Circuit Judge about two months thereafter would have required the formation of the court into divisions before this appeal, even if it had been effective, could have been heard and disposed of. See in this connection Goodkind v. Wolkowsky, 151 Fla. 61, 9 So. (2nd) 553. The case of Western Casualty & Surety Co. v.

Rotter, 139 Fla. 854, 191 So. 78, did not deal with a situation like this, and involved a different statute. We have no criticism to make of the opinion in that case. In view of the unusual situation here presented, this writer has reviewed this record, and if Judge Shields had jurisdiction to decide this appeal, we find in his judgment of affirmance no departure from the essential requirements of the law, and hence no ground for quashing his judgment.

But our view is that as this appeal was taken from the Civil Court of Record before its judgment had been entered, the Circuit Court never acquired jurisdiction to either affirm or reverse such judgment. The Petition for Certiorari must therefore be and is hereby denied. CHAPMAN, C. X, THOMAS and SEBRING, JJ., concur.