On Application for Behearing.
Whitfield, J.The final order herein was affirmed upon the' theory- that the bill of exceptions was not presented for authentication by the trial judge during the term of- the court in which the trial was had and no special order was shown for presenting a bill of exceptions after the term, tío' error in the record proper appearing. It now appears that; the bill of exceptions was authenticated by the trial judge before an adjournment of the term-in which the - trial was had.
In Barnes v. State, 68 Fla. 291, 67 South. Rep. 131, it .is held that “under statutory direction that terms of a Circuit Court shall begin on certain Mondays in the several counties, the term-fin one county does not ipsa facto end the "Saturday'at-'midnight preceding the Monday fixed *171for the beginning of the term in another county,” and that “The statute does not fix the term of the court. It merely directs that the term begin on a certain Monday, and that un the Monday succeeding this Saturday a term be held in another county of the circuit.”
In cases where it has been presumed that the Circuit Court for one county had been adjourned prior to the convening of the Circuit Court in another county of the circuit, there was only one Circuit Judge in the circuit and the records did not show special action taken with reference to adjournment of the court in one county and convening in another county of the circuit. This case was tided in Duval County, which is in the Fourth Judicial Circuit.
In Duval County there were two resident Circuit Judges when this case was determined, February 24, 1923, and it does not appear that the Circuit Court for Duval County had been adjourned prior to the third Monday in April, 1923, the date fixed by the statute as “the time for holding ’ ’ the spring term of the Circuit Court for Clay County in the same Judicial Circuit. Secs. 3041, 3045, Rev. Gen. Stats. 1920.
The bill of exceptions herein was presented and authenticated on April 24, 1923, without a showing of time allowed for such presentation after adjournment; but as there were two Circuit Judges in Duval County, there is nd presumption that the' fall term of the Circuit Court for Duval County which under the statute began on the fourth Monday in November, was duly adjourned before the third Monday in April, the time fixed by the statute for holding a term of the Circuit Court in Clay County in the same judicial circuit, since the Circuit Judge for Duval County provided for by Section 42, Art. 5 of the State Constitution was resident in Duval County and could not sit in' *172Clay County except by executive assignment, while it was the duty of the Judge of’ the Fourth Judicial Circuit and not of the Circuit Judge for Duval County to hold court in Clay County. Besides, the bill of exceptions states that the case was tried “ at a term of the Circuit Court of the Fourth Judicial Circuit of the State of Florida for the County of Duval.” This indicates that the fall term of the Circuit Court for Duval County had not been adjourned and the bill of exceptions was properly acted, on by the Circuit Judge of the county.
Rehearing granted.
Taylor, C. J., and Browne, West and Terrell, J.'J., concur. Ellis, J., dissents.