
    In re ESTATE of Earl M. WEYMER, Deceased.
    No. 495.
    District Court of Appeal of Florida. Fourth District.
    June 8, 1967.
    H. J. Frazier, of Patterson & Maloney, Fort Lauderdale, for appellant Paul A. Louis, Guardian.
    Kelley, Tompkins & Griffin, Fort Lau-derdale, for appellee Broward Nat. Bank of Fort Lauderdale, Executor.
   CROSS, Judge.

A guardian of the property of a minor appeals from an order entered by the court, sua sponte, amending a prior order.

The minor was the principal beneficiary under the residuary trust created by the last will and testament and codicil of the child’s deceased father.

The father died owning a certain life insurance policy which was payable to the insured’s estate, and said policy was collected by the executor on or about December 12, 1961. The guardian made demand upon the executor for the proceeds of said insurance policy which demand was refused.

The guardian filed a petition in the county judge’s court for the disbursement of said proceeds. Upon hearing the guardian maintained that the proceeds from the insurance policy were not specifically bequeathed and in accordance with F.S.A. § 222.13 were the property of his ward. The guardian further maintained that the proceeds of insurance had not been specifically set aside by the said executor but had been commingled with the general funds of the estate and that the guardian was entitled to said proceeds along with the legal rate of interest since the date they were collected by the executor until the proceeds were disbursed to the guardian. The executor maintained that the proceeds had been specifically bequeathed, or, in the alternate, the executor had complied with the provisions of F.S.A. § 222.13 and the guardian was not entitled to interest or income upon said proceeds of insurance. After the hearing the court entered its order dated March 11, 1965, determining that the life insurance proceeds were not specifically bequeathed; therefore, in accordance with F.S.A. § 222.13 the only surviving child, Susan Jane Weymer (there being no surviving spouse) was entitled to the proceeds along with the legal rate of interest from the date they were received by the executor.

In the March 11, 1965, order the executor was directed to pay to the guardian said proceeds of insurance and interest at the legal rate within ten days. Thereafter, -the guardian received said proceeds of. insurance and several months later received a check for a sum which amount purported to be the interest earned upon said proceeds of insurance by the executor for the period December 12, 1961, the date it received the same, to April 12, 1965, the date it paid the same.

The guardian failing to receive the full amount of interest computed at six per cent filed a motion on July 28, 1965, to enforce the court’s order dated March 11, 1965, alleging that, in accordance with the court’s order, the guardian was entitled to receive interest in the amount of the legal rate. Upon hearing on said motion to enforce the court’s order the court, sua sponte, amended the order dated March 11, 1965, and entered an amended order dated September 16, 1965, which order is the- subject matter of this appeal. The amended order provided that the executor was only required to pay the earnings it had received upon said life insurance proceeds rather than the legal rate of interest it had heretofore directed the executor to pay in its order of March 11, 1965.

From the foregoing the appellant contends that the county judge’s order of March 11, 1965, was a final order and that the court was without jurisdiction to enter an amended order on September 16, 1965, since the time for corrective action and appeal had expired. This contention is without merit. Fla.R.Civ.P. 1.540(b), 30 F.S.A. (formerly Rule 1.38(b)) grants relief from judgment, decree or order for a period of not more than one year after judgment, decree, order or proceeding was entered or taken when such final judgment, decree, order or proceeding has been entered by mistake, inadvertence, surprise, or excusable neglect.

When the court on September 16, 1965, sua sponte, entered an amended order for the purpose of more clearly defining the court’s intent it revised its previous order because it inadvertently penalized the executor. This oversight was corrected by the court upon reflection and in the furtherance of the interest of justice. A decision is inadvertent if it is the result of oversight, neglect or accident as distinguished from judicial error.

The Florida courts have not passed on the question of whether a court may act of its own motion under Rule 1.540 (formerly Rule 1.38) of the 1967 Fla.R.Civ.P., which in all material respects is identical with Rule 60(b) of the Fed.R.Civ.P. In United States v. Jacobs, 4 C.A.1961, 298 F.2d 469, the federal court held that the rule does not deprive' the court of the power to act in the interest of justice in a case in which its attention has been directed to the necessity for relief by means other than a motion, citing the comment of Prof. Moore in footnote 5 of page 3883, Vol. 6 Moore, Federal Practice Sec. 59.12 (4) (2d ed. 1953), wherein it is stated that a court can presumably act on its own initiative to give substantive relief under Fed.R. Civ.P. 60(b). See Polster v. General Guaranty Mortgage Company, Fla.App.1965, 180 So.2d 484.

We now align ourselves with the rulings promulgated by the federal courts.

Affirmed.

ANDREWS, J., concurs.

WALDEN, C. J., dissents.

WALDEN, Chief Judge

(dissenting).

On March 11, 1965, the county judge entered a final appealable order directing the executor of an estate to pay over certain insurance policy proceeds “plus interest at the legal rate from the date said proceeds were received. * * * ”

No appeal or petition for rehearing was filed, and the time permitted therefor had long since expired. Thus, under the law of this state the order had achieved ultimate finality and could only be amended, modified or vacated by proper independent action or by meeting the terms and conditions found in Fla.R.Civ.P. 1.38 (now Rule 1.540, which rule is substantially the same as Federal Rule 60). Morrison v. Morrison, Fla.App.1960, 122 So.2d 199; McEachin v. McEachin, Fla.App.1963, 154 So.2d 894; Augusta Corp. v. Strawn, Fla.App.1965, 174 So.2d 621.

On September 16, 1965, the county judge entered the order appealed. It provided, inter alia:

“THE COURT, sua sponte, enters this Amended Order as an amendment to that Order of March 11, 1965, for the purpose of more clearly defining the Court’s intent of said Order.” (Emphasis added.)

It then directed the executors to pay over the certain insurance policy proceeds “plus all earnings received by the said executor during the time of having said amount prudently invested.” Interest was eliminated.

A comparison of the two orders reveals a substantial material modification. The original order required payment of certain interest which, according to the record, amounted to $5,067.32. The amended order required in lieu of interest payment of certain investment earnings which, according t6 the record, amounted to $1,926.75. It is the difference of $3,140.57 which is at stake in this appeal.

We are not concerned with an independent action and so must determine if the amendment can find sanction under Rule 1.38, supra.

The majority opinion declares that the initial order of March 11, 1965, was, “inadvertent”. It finds authorization for its reversal by the county judge on his own motion some six months later under the reasons recited in Rule 1.38(b)(1) as “(1) mistake, inadvertence, surprise, or excusable neglect.” To pinpoint, it is this declaration, which I believe to be unfounded and this use of the rule to which I respectfully dissent..

This writer can find no basis in the language of the rule, or in the state and federal cases that have construed and applied such language, whereby Rule 1.38, supra, could be applicable to the circunp-stances at hand.

To be remembered and emphasized is the fact that the county judge did not denominate his order and judicial act as having been “inadvertent.” He nowhere mentioned inadvertence, mistake, surprise or neglect. Even more compellingly, the county judge omitted to set forth any facts, circumstances or showing which would constitute inadvertence. While a trial court has the power to grant relief from a final order because of inadvertence under the mentioned rule in order to prevent manifest injustice, it is a prerequisite that there be a showing of the existence of grounds which justify the use of such power. Butler v. Butler, Fla.App.1965, 172 So.2d 899. It takes not a great deal of imagination to envision the fate of finality if the procedure here mentioned is condoned.

In order to obtain a feel or understanding concerning the proper application of Rule 1.38(b) (1), supra, a review of cases wherein inadvertence has been either found or rejected may be profitable. Inasmuch as Florida cases are rare, the array concerhs Federal Rule 60(b)(1).

In these instances, mistake, inadvertence, or neglect wás found which was sufficient to justify vacating the order, judgment or decree:

(a) Process was delivered to wife and was not given to defendant but instead was turned over to business manager who mistakenly believed that it pertained only to bankruptcy proceedings of corporation of which defendant was vice-president. This was held to be mistake, inadvertence and excusable neglect under Rule 60(b)(1). Rooks v. American Brass Co., 6 C.A.1959, 263 F.2d 166.

(b) Where service was made on principal defendant in automobile collision case, but insurer obligated to defend had no opportunity to do so because of neglect of an unknown employee in placing summons in storage files with result that legal department had no knowledge of summons until after default was entered, relief from default would be given on ground of mistake, inadvertence, surprise or excusable neglect. Ellington v. Milne, D.C.N.C.1953, 14 F.R.D. 241.

(c) Where delay of one day in filing answer of defendant in federal district court was owing to a miscalculation of time by counsel of defendant, and claim of plaintiff was a substantial one, and defendant set up meritorious defense, default judgment would be vacated in the interest of justice. Wolfsohn v. Raab, D.C.Pa.1951, 11 F.R.D. 254.

(d) If unsuccessful litigant believed that a small item of damages had been overlooked by the trial court relief might be available under 60(b)(1) for mistake and inadvertence. Southern Fireproofing Co. v. R. F. Ball Construction Co., 8 C.A.1964, 334 F.2d 122.

(e)Under circumstances in proceeding to condemn land which appeared on stipulated plat as streets, government was entitled to relief from consent judgment on ground that it had agreed to pay on misunderstanding as to owner’s rights in streets. United States v. Gould, 5 C.A.1962, 301 F.2d 353.

In the following instances the showing of mistake, inadvertence or neglect was insufficient:

(a) Where motion for reconsideration of judgment dismissing complaint was predicated upon an asserted mistake of law by the district court in ruling that complaint did not state a cause of action, this rule providing for correction of mistakes was inapplicable. Jusino v. Morales & Tio, 1 C.A.1944, 139 F.2d 946.

(b) Alleged fact that federal district court misconceived character of causes of actions alleged in plaintiff’s original complaint was not mistake or inadvertence within this rule — 60(b) (1). Swam v. United States, 7 C.A.1964, 327 F.2d 431.

(c) A change in the law by a subsequent decision of a higher court is neither a “clerical mistake” nor a “mistake of party” within the federal rule providing for correction of mistakes 60(a), (b). Safeway Stores v. Coe, 1943, 784 U.S.App.D.C. 19, 136 F.2d 771, 148 A.L.R. 782.

(d) Fact that a court may have made a mistake in law when entering judgment or that there may have been a judicial change in court’s view of law after its entry does not .justify setting judgment aside. Collins v. City of Wichita, Kan., 10 C.A. 1958, 254 F.2d 837.

(e) Courts possess inherent power to correct error in records evidencing judgment pronounced by court, so as to make them speak the truth by actually reflecting that which was in fact done, but they do not possess power to correct error by court in rendering a judgment it did not intend to render and by such order change judgment, actually but erroneously pronounced, to one the court intended to record. Blankenship v. Royalty Holding Co., 10 C.A. 1953, 202 F.2d 77.

(f) Interest from date of taking of land was a substantive matter and not a clerical mistake which could be corrected under rule after judgment. Stowers v. United States, D.C.Ga.1961, 191 F.Supp. 795.

Certainly it is incumbent upon a moving party to demonstrate facts and circumstances which go to make up recognized or stated grounds for relief under Rule 1.38, supra, and it is no less the duty of the trial court to do so when a modification is undertaken by the court on its own motion. Otherwise, no order could ever be considered final and a review of the court’s action could not be effectively had. It is my view, then, that under Rule 1.38(b) (1), supra, a naked and unsupported declaration of mistake or inadvertence (which we do not even have) will not authorize the trial court to vacate a final order, and particularly so after the time for rehearing and appeal have expired.

Divested of gloss, we see that the able county judge simply became aware that an error of law — a judicial error — had crept into the initial order and, with commendable motive, sought to excise it and make things aright, using the stated purpose “of more clearly defining the court’s intent.” Fortunately or not, depending on viewpoint, this undertaking represents the correction of an intrinsic and unverifiable judicial mistake and as such collides with the settled law of this state as expressed in Stewart v. Berger, Fla.1959, 109 So.2d 765, and Morrison v. Morrison, Fla.App.1960, 122 So.2d 199. Further, I do not understand that there has been any relaxation of this view since the enactment of Rule 1.38, supra.

Taking a still different tack, if a mistake of law be not so categorized and if it be assumed that it is reachable under such rule (a few federal courts appear to hold this view), even the most liberal construction of the corresponding Federal Rule 60(b) would limit the time for such relief in the trial court to the time allowed for an appeal. Thus, under this far-reaching application the time passage here is fatal and bars modification. For a careful discussion of this point see 7 Moore’s Federal Practice, § 60.22(4).

For the above reasons I would reverse.  