This matter was originally determined in favor of the Defendant in Error. A rehearing was, on motion duly made, granted, and the original decision affirmed. This action transpired just four or five days, before the expiration of the 1931 June Term of this Court. After the expiration of this term, and a short time after the beginning of the 1932 January Term of this Court, to-wit: on February 17th, which was more than a month after the beginning of the Term, the Court of its own motion entered an order vacating the judgment which affirmed the original judgment as aforesaid. The Defendant in Error, by its attorneys, have moved the Court to vacate and set aside its order vacating and setting aside its judgment as aforesaid, and it is urged that the Court is now without power or jurisdiction to consider the cause further, for the reason that the judgment was made and entered during the 1931 June Term, and that at the time of making the order complained of, that term had expired, and, therefore, the term having expired, and no motion for rehearing having been filed, the Court had lost jurisdiction of the *Page 775 case, and also the power to act further therein, other than to forward the mandate of the lower Court.
At the beginning of my consideration of this involved question, I was strongly of the opinion that the Court had lost its jurisdiction and power to act, for the reason that the term at which the judgment was rendered had expired, and all time for motions for rehearing had expired, and none had been filed, and the new term had begun. However, it appears that the mandate has never been transmitted in the lower court. After a study of this situation I have concluded that until the mandate is transmitted, even though it may be delayed, that the lower court is without jurisdiction of the cause, and can in no-wise act therein, and that under such circumstances the cause remains within the jurisdiction of the appellate court. There can be no twilight zone in jurisdiction nor vacuum in its application. It is either effective full force or not at all. Therefore, as I see it, there can be no question that the Pinellas County Circuit Court could not act, nor have jurisdiction of the case until the mandate was transmitted, and that not having been done, the jurisdiction of the case remained in the Supreme Court of Florida. For the reasons stated I conclude the Court had authority and jurisdiction to make the order, and that the motion of appellee to vacate and set aside the same should be overruled and denied.
WHITFIELD, TERRELL AND BUFORD, J.J., concur.
BROWN, J., dissents.
DAVIS, C. J., disqualified.
Opinion filed March 9, 1933.