Opinion
July 1, 1952.
Appeal from the Circuit Court, Dade County, George E. Holt, J.
J. Harvey Robillard, Miami Beach, for appellants.
Dixon, DeJarnette Bradford, Miami, for appellee.
This is an appeal from an order of the Circuit Court, Dade County, Florida, granting a writ of prohibition against a Judge of the Civil Court of Record of that county.
The writ prohibits such judge from considering, ruling upon, or granting a motion filed in that court by the co-appellant, Jennings, to set aside a verdict and judgment entered therein against said appellant, which judgment was entered on the 5th day of October, 1951, pursuant to a verdict entered the 3rd day of such month.
No motion for new trial was filed within four days, nor was any extension of time for the filing of such motion applied for. No appeal was taken from the final judgment prior to the expiration of the statutory period of one calendar month.
The motion to set aside the verdict and judgment was filed November 9, 1951, during the same term that the judgment and verdict was entered. It appears from the uncontested statement of the trial judge in his return that the trial judge "took cognizance of said motion November 9, 1951, within said term by hearing arguments of counsel for the parties upon said motion" and that said trial judge announced that "he intended to grant the motion to set aside said judgment."
The question here is not whether the trial judge would commit error by vacating and setting aside the judgment, but whether or not he has jurisdiction to do so.
This court has said in Revell v. Dishong, 129 Fla. 9, 175 So. 905, 908:
"Courts have absolute authority and control over their own orders, decrees, and judgments, and can vacate, amend, or reform at any time during the term of Court at which they are made."
"Where motions for new trial and in arrest of judgment were granted during term in which verdict was rendered, and in same term motion to vacate orders was indorsed `before me' by judge, such jurisdiction of cause was sufficient to carry matter over into succeeding term under general order of continuance, and to permit vacating of orders and rendition of final judgment at that term." Riddle v. Colliver, 116 Fla. 723, 156 So. 880, 881, 3rd headnote.
The order of the Circuit Judge granting the writ of prohibition is reversed and said writ is quashed.
SEBRING, C.J., and ROBERTS and MATHEWS, JJ., concur.
It is my view that, while the trial court would have committed reversible error had it set the judgment aside upon the allegations contained in the motion to vacate the judgment, it cannot be said that the trial court was wholly without jurisdiction to rule on the matter. Where a court is about to enter an erroneous order in respect to a case of which it has or retains jurisdiction, the proper remedy is by appeal or other appropriate method of review after the error is committed, not by prohibition in anticipation that such error is about to be committed. Therefore, I concur in the opinion and judgment prepared by Mr. Associate Justice HOCKER.
ROBERTS and MATHEWS, JJ., concur.