Arnau v. First National Bank

Taylor, J.: This cause, together with three other causes, in wTiich there was the same appellee, and in which the record •of the pleadings, proofs and assignments of error were identical, was submitted to this court by agreement of •counsel upon one brief that was to be applied to all of the cases. The four causes were recently taken up at the present term and considered together and one opinion rendered disposing of the questions presented to the court in all of the cases, and none of the questions presented and assigned as error having been found in favor of the appellants, the judgments in the four cases (including the present cause) were affirmed. The appellant’s attorney in this one of the four cases thus presented and decided now applies for a rehearing, and now, for the first time, calls the attention of the court to the fact that in this cause, wherein Peter S. Arnau is appellant, the referee who tried it inadvertently entered a judgment for five hundred and twenty-four dollars and twenty-six cents, when, it is clear from the record in the cause, the judgment should have been for three hundred and twenty four dollars and twenty-six cents — an excess of two hundred dollars beyond what the plaintiff was entitled to. It is due to ourselves and to the referee who tried the cause below to say that this defect in the judgment entered in this cause was Qot called to the attention of the referee below in the motion made before him for a new trial therein; neither was it pointed out here in this court by any assignment of error, or by any mention thereof in the brief filed here by the same counsel for the appellant, who now, at this late day, after the cause has been the rounds of all the courts, makes the discovery and urges it as ground for reconsideration of the cause. We 397 might, in strict compliance with the rules governing-appellate procedure, deny the application in toto, but the excessiveness of the judgment in this cause being patent, and the court being unwilling to visit the carelessness of counsel upon the appellant’s head, and treating the application for rehearing as one only for modification of the judgment, the judgment of the-court heretofore rendered, in so far only as it affects-the appeal of the appellant Peter S. Arnau, is hereby modified so as to require the appellee, the First National Bank of Florida, within thirty days after this order, to enter a remittitur of its judgment against Peter S. Arnau to the amount of two hundred dollars, to take effect as of the date of the rendition of such judgment; and if it shall fail or refuse so to do, then the said judgment shall be reversed and a new trial therein awarded; but if it shall enter such remittitur within the time herein prescribed, the sa.id judgment as so reduced shall stand affirmed. The application for rehearing is hereby denied.