FANNIE SCHUTZER AND LOUIS SCHUTZER, APPELLANTS,
v.
THE CITY OF MIAMI, A MUNICIPAL CORPORATION, APPELLEE
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The Schützers appealed a reversal and remand of their case against the City of Miami. After the City filed a notice of intention to seek certiorari but failed to actually file the petition within the required 60-day period, the appellate court issued the mandate and imposed a $50 penalty on the City for its failure to follow procedural rules.
The appellate court issued its mandate and imposed a $50 penalty on the City of Miami, requiring payment to the clerk of the circuit court within 10 days, for its failure to file the certiorari petition after giving notice of intention to do so.
“Failure to file a petition for certiorari after the filing of notice of intention hereunder or the filing of a frivolous petition for certiorari shall subject the petitioner to such penalties or damages as shall be fixed by the Supreme Court or district court of appeal.”
Establishes the rule providing for penalties when a party files notice of intention to seek certiorari but fails to actually file the petition.
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Join FLexlaw to unlock all legal intelligenceThis court reversed a judgment appealed from and remanded the case to the trial court on September 25, 1958. The City of Miami filed a petition for re…
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The appellant moved this court for the issuance of the mandate and imposition of penalty under rule 4.5, subd. c(6), Florida Appellate Rules, 31 F.S.A.
This court had rendered its opinion and judgment in this cause on September 25, 1958, by which the judgment appealed from was reversed and the cause remanded to the trial court for further proceedings. Within the 15 days allowed by the rule for filing a petition for rehearing, the appel-lee, City of Miami, filed its petition for rehearing and a notice of intention to apply to the Supreme Court of Florida for a writ of certiorari.1 This court denied the ap-pellee’s petition for rehearing by an order dated October 24, 1958.
Under the applicable rule the 60 day period within which a petition for certiorari could be filed commenced October 25, 1958, and expired on December 24, 1958. During that 60 day period this court withheld its mandate as provided for by the rule quoted in the margin in footnote 1.
It appeared and was conceded by counsel for the city at the hearing that notwithstanding the notice of intention to file petition for certiorari in the Supreme Court, the petition was not filed there.2
On consideration of the motion for issuance of the mandate and for imposition of penalty, as provided for in the rule in such circumstances, it is ordered that the *96mandate shall issue; and the appellee City of Miami is ordered and required to pay to the appellants damages in the sum of $50 by delivering the same to the clerk of the Circuit Court in and for Dade County within 10 days from the date of this order.
It is so ordered.
CARROLL, CHAS., C. J., and HORTON and PEARSON, JJ., concur.