Rye v. Banks

Citation63 So. 825,66 Fla. 434
PartiesRYE v. BANKS.
Decision Date09 December 1913
CourtUnited States State Supreme Court of Florida

On Motion to Reinstate, Jan. 9, 1914.

Error to Circuit Court, Suwannee County; R. T. Boozer, Judge Ad Litem.

Action by W. A. Rye against Haddie V. Banks. Judgment for defendant and plaintiff brings error. Dismissed. Motion to reinstate denied.

Syllabus by the Court

SYLLABUS

While a writ of error is a common-law writ, its issuance and return are controlled by definite statutory enactments.

Where a writ of error is knowingly 'dated back' to the filing of the praecipe, and the writ is made returnable 'more than ninety days from the date of the writ.' in violation of the statute, this court will not, after the dismissal of the writ, and after the expiration of the time within which a writ of error may be issued, amend the date of the writ so as to make it effectual under the statute.

COUNSEL Humphreys & Blackwell, of Live Oak, for plaintiff in error.

L. E Roberson, of Live Oak, for defendant in error.

OPINION

PER CURIAM.

It appearing that this writ of error was sued out and entered on the 5th day of June, 1913, and was made returnable on the 6th day of September, 1913, more than 90 days from the date of the writ, in violation of chapter 5638 of the Laws of 1907 it follows that it must be dismissed. Ates v Langley, 61 Fla. 504, 54 So. 264.

Writ of error dismissed. All concur.

On Motion to Reinstate.

The writ of error herein was dismissed because it bears date June 5, 1913, and was made returnable September 6, 1913, 'more than ninety days from the date of the writ,' in violation of the statute. A motion is made to reinstate the cause on the ground that the writ of error was in fact issued on June 10, 1913, instead of June 5, 1913, the date it bears. An affidavit of the clerk, presented in support of the motion to reinstate, states that the writ of error 'did issue some time between Monday morning June 9, 1913, and the 11th day of June, the date of filing the supersedeas bond in said cause and that the said writ of error was dated back to correspond with the file mark on the praecipe for said writ of error, and between the record of said writ of error was dated back to correspond with the file mark on said praecipe.' An affidavit of counsel, in support of the motion to reinstate, avers 'that several days before June 10, 1913, affiant left the praecipe for writ of error in the above cause, together with a blank and unexecuted supersedeas bond, with the clerk of the court in and for Suwannee county, and then and there stated to the said clerk that he had written to W. A. Rye, the plaintiff, to come to Live Oak, and to call at the office and to execute said supersedeas bond, and requested the clerk at the time that, should he call, 'Let him have the bond properly executed,' and affiant then and there requested the said clerk not to file the praecipe for writ of error until the 10th day of June, 1913, and not to issue said writ of error until June 10, 1913; that the clerk laid the papers aside, and later either himself or some of his deputies put the file mark of June 5th on said praecipe for writ of error; but the said clerk did not issue the writ of error in above cause on June 5th; that on June 10, 1913, affiant went into the office of said clerk, and reminded him that that was the day to issue writ of error in above cause, and requested him to issue the same, and the said clerk did then and there issue the said writ of error, and he had not issued it theretofore; that the said clerk dated the attest of the writ of error back to correspond with the...

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5 cases
  • Lamb v. State
    • United States
    • Florida Supreme Court
    • March 1, 1926
    ... ... by the Constitution or by statutory regulations are available ... in this state, but the use of such judicial writs may be ... regulated by statute or by rules of court duly promulgated ... under statutory authority. See McClellan v. Wood, 83 ... So. 295, 78 Fla. 407; Rye v. Banks, 63 So. 825, 66 ... Fla. 434; Sanders v. State, 85 Ind. 318, 44 Am. Rep ... 29, 4 Crim. Law Mag. 359, text 373 ... The ... statutes of the state contain no express provisions ... regulating the use of writs of error coram nobis or coram ... vobis. See Collins v. Mitchell, 5 Fla ... ...
  • Mutual Life Ins. Co. v. Hartley
    • United States
    • Florida Supreme Court
    • July 13, 1926
    ... ... Farmers' State Bank, 147 F. 360, 77 ... C. C. A. 538, 9 L. R. A. (N. S.) 585; 3 C.J. 1209 ... Where a ... writ of error is made returnable to a day not authorized by ... law, the writ is ineffectual, and will be dismissed ... Driggs v. Higgins, 19 Fla. 103; Rye v ... Banks, 66 Fla. 434, 63 So. 825; Savannah, F. & W ... Ry. Co. v. Justice, 41 Fla. 508, 26 So. 704; ... Anderson v. State, 73 Fla. 86, 74 So. 6 ... When a ... purported writ of error is not even colorably the writ of the ... court to which it is returnable, it is not amendable, and ... ...
  • Adams v. State
    • United States
    • Florida Supreme Court
    • December 20, 1927
    ... ... make the writ as issued effective. An express or implied [94 ... Fla. 1157] appearance is of no avail in such case, and the ... writ will be dismissed by the appellate court of its own ... motion. Savannah, Florida & W. Ry. Co. v. Justice, ... 41 Fla. 508, 26 So. 704; Rye v. Banks, 66 Fla. 434, ... 63 So. 825; Anderson v. State, 73 Fla. 86, 74 So. 6; ... Law v. Zimmerman, 87 Fla. 421, 100 So. 528; ... Griffith v. Henderson, 52 Fla. 507, 42 So. 705; ... McJunkins v. Stevens, 88 Fla. 559, 102 So. 756; ... Mutual Life Ins. Co. v. Hartley (Fla.) 109 So. 421 ... As the ... ...
  • Rood v. Miami Air Conditioning Co.
    • United States
    • Florida District Court of Appeals
    • November 29, 1966
    ...to say whether the conditional sale was properly proved for record; and the judgment is affirmed.' (Emphasis by the writer of the opinion) (63 So. 825) The principle that we glean from an examination of the foregoing cases is that it is not necessary for a vendor of personal property who re......
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