On petition for rehearing it is contended that this Court overlooked and failed to pass upon and to decide the main contention of appellants here, viz.: the motion *Page 871 for an order of a dismissal of the appeals of Mattie J. Smith and husband DaCosta Smith and Emma Trammell by the Circuit Court of Volusia County made and entered from the County Judge's Court of Volusia County to the circuit court in the case at bar. It is also argued that said motion should have been sustained by the circuit court under the provisions of Section 53 of Chapter 16103, Acts of 1933.
The order entered by the Honorable J.E. Peacock, County Judge of Volusia County, dated June 30, 1939, was assigned as error on the appeal to the Circuit Court. The notice of appeal on the part of Emma Trammell is dated July 15, 1938, and notice of appeal taken by Mattie J. Smith and husband, DaCosta Smith, was dated July 29, 1938. The notice of appeal taken by Emma Trammell names the parties thereto, and the material portions thereof are, viz.:
"Now comes Emma Trammell, a widow, one of the intervenors in the above stated cause, and enters this appeal to the Circuit Court of the Seventh Judicial Circuit in and for Volusia County, Florida, from the order of the Honorable J.E. Peacock, County Judge, revoking probate of the last will and testament of Nicholas P. Alkire, deceased, and in this cause First Atlantic National Bank of Daytona Beach, Florida, a corporation, as executor of the last will and testament of said Nicholas P. Alkire, deceased, was proponent; Mattie J. Smith and her husband, DaCosta Smith, were intervenors; Emma Trammell, a widow, was intervenor, and Ellen Alkire Callison, May Alkire Southern and Edwin Alkire were contestants, * * *."
It was the duty of the Circuit Court under the provisions of Section 53 of Chapter 16103, Acts of 1933, upon application to set a date for hearing of the said appeal within sixty days after the same was taken, and on August 20, 1938, within the sixty days period, Mrs. Emma Trammell presented *Page 872 a written motion to the Honorable H.B. Frederick, Circuit Judge, in which it was recited that John R. Parkinson, attorney for Mattie J. Smith and DaCosta Smith, her husband, on August 12, 1938, was operated on for appendicitis and requested the court for an order setting a date for hearing the said appeals. Notice of the application for an order fixing the date of hearing was served upon counsel of record for the parties to the suit.
On August 20, 1938, the Honorable H.B. Frederick, Circuit Judge, made and entered an order enlarging the time of hearing the said appeals to 9:30 A. M., October 13, 1938, and the order so made was recorded in Circuit Court Minute Book No. 17 at page 513, on August 24, 1938. On October 13, 1938, after due notice of the hearing had been served on counsel of record it was learned that the Circuit Judge was then engaged in the trial of an important case and a second order was entered enlarging the time of hearing the appeals to November 14, 1938. The order recited that counsel of record for the parties were before the court when the order was entered on October 13, 1938. The order was recorded in Chancery Order Book No. 78 at page 136 and in Circuit Court Minute Book No. 17 at page 543 on October 13, 1938.
It is contended that the appeals to the Circuit Court from the County Judge's Court should have been dismissed by the Circuit Court for reasons, viz.: (a) the order dated August 20, 1938, enlarging the time of hearing the appeals was predicated on the motion of Mrs. Emma Trammell and the order so made was legally insufficient to include the other appellants, Mattie J. Smith and husband, DaCosta Smith; (b) while the order dated August 20, 1938, enlarging the time of hearing the appeals was recorded in Circuit Court Minute Book 17, at page 543, the same was not a substantial compliance with the provisions of Section 43, supra. The case *Page 873 of Klein v. Werner, 133 Fla. 683, 183 So. 159, and Sections 4642, 4857, 4948 C. G. L., and other Florida cases are cited. We find no fault with the authorities cited.
Section 53 of Chapter 16103, supra, provides that the order so made by the Circuit Court enlarging the time for hearing the appeals shall be "filed and recorded in the office of the Clerk of the Circuit Court." The filing thereof was properly made and the same recorded in the Circuit Court Minute Book No. 17 at page 543. We think this is a substantial compliance with the requirements of the statute in the absence of a mandate of the statute that the same should be recorded in the Chancery Order Book.
The order of the Circuit Court dated August 20, 1938, enlarging the time of hearing the appeals and the second order dated October 13, 1938, "after due notice," recited "and there being present at said hearing Millard Conklin, Esquire, attorney for the appellees; Paul W. Harvey, Esquire, attorney for appellant Emma Trammell, and John R. Parkinson, attorney for appellants Mattie J. Smith and DaCosta Smith, her husband, and all parties being ready for trial * * *" The technical contention that the orders made on the motion of one appellant was legally insufficient to include the other appellants in the same cause comes at a late date when presented in the petition for a rehearing.
We fail to find merit in this contention. The record shows that counsel for appellants was personally present in the lower court or notice to appear therein was served on him prior to August 20th, and October 13th, 1938, when the orders enlarging the time for hearing the appeals were made and entered. If the orders made on the motion of Mrs. Emma Trammell were legally insufficient to include the appeal of Mattie J. Smith and husband, DaCosta Smith, then it appears that the responsibility rested on counsel for appellants here, at said hearings in the lower court, to have *Page 874 presented the contention to the Circuit Court when the orders were being made and the court granted an opportunity based on the objections to amend the order so as to meet the views of counsel.
It is not good grace for counsel to be heard now on the identical point not brought to the attention of the lower court, when it was his duty to speak but he then chose to remain silent.
In the case of Mitchell v. Mitchell, 139 Fla. 634,190 So. 758, this Court held that Section 53 of Chapter 16103 was directory and not mandatory. The principle of law enunciated in the case, of Klein v. Werner, 133 Fla. 683, 183 So. 159, is not applicable to the case at bar. We have in the case at bar a different set of facts.
We have considered the other questions presented by the petition for rehearing. Careful study has been made of the entire record and the first impression of the writer of this opinion on the facts was that the order assigned as error here should be reversed, but a close study of the testimony directs the single conclusion and that is the one reached by the lower court. See Section 4637 (2918) C. G. L.
The petition for rehearing is denied.
WHITFIELD, P. J., and BUFORD, J., concur.
BROWN, J., dissents.
Chief Justice TERRELL and Justice THOMAS not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.