Akin v. Morgan
| Decision Date | 24 October 1905 |
| Citation | 50 Fla. 173,39 So. 534 |
| Parties | AKIN et al. v. MORGAN et al. |
| Court | Florida Supreme Court |
On Rehearing, November 28, 1905.
In Banc. Error to Circuit Court, Hamilton County; B. H. Palmer Judge.
Action between J. S. Akin and others and Sarah Morgan and others. From the judgment, Akin and others bring error. Dismissed.
Syllabus by the Court
Motions to reinstate appeals and writs of error that have been dismissed by the court when the cases were reached in regular order for final disposition after submission on the merits are not considered with favor, where the dismissals were because of some neglect of counsel, unless such neglect is shown to have been caused by something beyond the control of counsel.
It is the duty of counsel for appellants or plaintiffs in error to see that the transcripts of the proceedings in the court below are properly made up and correctly certified by the clerk of the trial court before being filed here.
When a cause is submitted to this court upon its merits, and the cause remains upon the docket until it is reached by the court in regular order for final decision upon its merits the parties have had their day in court; and if upon consideration of the case it is dismissed for some fatal defect, due to oversight or neglect of counsel, where such oversight or neglect was not beyond the control of counsel the cause will not be reinstated.
When a cause is regularly submitted on its merits, and, upon being taken up by the court in regular order for final disposition the writ of error in the cause is dismissed for a fatal defect in the clerk's certificate to the transcript of the record, the cause will not be reinstated, where the attorney for the plaintiff in error shows that it was through his oversight or inadvertence, and that of his stenographer, that the fatally defective certificate was attached to the transcript, and such oversight or inadvertence is not shown to have been beyond the control of counsel.
Roberson & Small, for plaintiffs in error.
D. B. Johnson and B. B. Johnson, for defendants in error.
The certificate of the clerk to the record of this case is defective, in that it fails to set forth that it contains a true and correct 'copy' of all the papers and proceedings in said cause, etc. The identical defect has been frequently held fatal by this court. First National Bank of Pensacola v. Oxford Lake Line (Fla.) 34 So. 893; Burnham v. Driggers, 44 Fla. 168, 32 So. 796.
Writ of error dismissed. All the Justices concur.
On Rehearing.
This cause was submitted to the court upon briefs by counsel for the respective parties, and when it was taken up by the court in its regular order for final disposition upon its merits the certificate of the clerk to the transcript of the record was found to be fatally defective, in that it certified that the transcript contains 'a true and correct recital of all the papers and proceedings in said cause,' without stating that it contains correct copies of such papers and proceedings. The writ of error was therefore dismissed. First National Bank of Pensacola v. Oxford Lake Line, 45 Fla. ----, 34 So. 893; Burnham v. Driggers, 44 Fla. 168, 32 So. 796; Orange County High School v. Sanford, 17 Fla. 120. See, also, Caulk, Adm'r v. Fox, 13 Fla. 147; Zinn, Aldrich & Co. v. Dzialynski, 14 Fla. 43; Rabon v. State, 7 Fla. 9.
A motion to vacate the order dismissing the writ of error, to reinstate the cause, and to permit the plaintiffs in error to correct, or cause to be corrected, the certificate of the clerk, is made upon the ground that the omission from the certificate of the clerk was an inadvertence and accident. The affidavits presented in support of the motion state that counsel for the plaintiffs in error prepared the transcript of the record in the case and dictated to his stenographer a proper certificate; that the omissions from the certificate were caused through inadvertence of the stenographer in transcribing the notes; that counsel examined the transcript and certificate after the same had been finished by his stenographer, but the omission from the certificate was by some oversight or inadvertence overlooked; that the clerk...
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Keigans v. State
... ... 151, text 155; Florida Land Rock Phosphate Co. v ... Anderson, 50 Fla. 501, 39 So. 392, and authorities ... therein cited; Akin v. Morgan, 50 Fla. 172, 39 So ... 534; Porter v. Ewing (Fla.) 39 So. 993 ... I find ... that the bill of exceptions does not set ... ...
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Clinton v. State
... ... (Fla.) 42 So. 527; Florida Land ... Rock Phosphate Co. v. Anderson, 50 Fla. 501, 39 So. 392, ... and authorities therein cited; Akin v. Morgan, 50 ... Fla. 173, 39 So. 534; Porter v. Ewing, 51 Fla. 265, ... 39 So. 993. Also, see State v. Madoil, 12 Fla. 151, ... text 155 ... ...
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Jarvis v. State
... ... judgment. State v. Call, 1 Fla. 92; Hoodless v ... Jernigan, 46 Fla. 213, 35 So. 656; Akin v ... Morgan, 50 Fla. 173, 39 So. 534; Thomas v ... Price, 56 Fla. 694, 48 So. 17; Burk v. Clark, 8 Fla. 9; ... Colson v. State, 51 Fla. 19, 40 ... ...
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Globe & Rutgers Fire Ins. Co. v. Lewallen
... ... cause must therefore be, and is hereby, dismissed at the cost ... of the plaintiff in error. Akins v. Morgan, 50 Fla ... 173, 39 So. 534; First Nat. Bank of Pensacola v. Oxford ... Lake Line, 45 Fla. 275, 34 So. 893; Burnham v ... Driggers, 44 Fla. 168, ... ...