Anderson v. Hardesty

• Decision Date: 09 June 1930
• Parties: ANDERSON et ux. v. HARDESTY.
• Court: Florida Supreme Court

128 So. 851

99 Fla. 1347

ANDERSON et ux. v. HARDESTY.

Florida Supreme Court

June 9, 1930

Commissioners' Decision.

Suit by Harry A. Hardesty against F. L. Anderson and wife. From the decree, defendants appeal. On motion to quash the appeal as frivolous and taken for purpose of delay.

Motion denied.

Appeal from Circuit Court, Orange County; Frank A Smith, judge.

COUNSEL

W. O Anderson and G. P. Garrett, both of Orlando, for appellants.

Dickinson & Dickinson, of Orlando, for appellee.

OPINION

MATHEWS C.

Suit was brought to foreclose a mortgage upon real estate and personal property. Bill filed by complainant, mortgagee, is in the usual form with copy of notes and copy of the mortgage attached.

The answer, to which general replication was filed by complainant, sets up that defendants are without knowledge of the averments of the bill. Some testimony appears to have been taken by deposition which seems never to have been offered or received in evidence and some testimony was taken before a master, who was not authorized or directed to make findings of law or fact.

Defendants appeal from final decree of foreclosure as amended, and assign several errors, among which are insufficiency of the evidence to support the decree, and failure to file the original notes and mortgage in evidence.

Motion is made to quash this appeal upon the ground that it is frivolous and was taken against good faith and for the purpose of delay.

'Under sections 2920 and 3173, Revised General Statutes of 1920 [Sections 4639 and 4965, Compiled General Laws of Florida, 1927], the Supreme Court is authorized and required to entertain and decide motions to quash proceedings in error or by appeal, based upon the ground that such proceedings are taken merely for delay, notwithstanding the case has not been reached for final hearing upon regular call of the docket.

'It is not the purpose of sections 2920 and 3173, Revised General Statutes of 1920 [sections 4639 and 4965, Compiled General Laws of Florida, 1927], to require the court upon motions to quash, based upon the ground that the proceedings are taken merely for delay, to enter into an examination of or decide doubtful or debatable questions properly raised by the assignments of error, but its purpose is to enable the court to quash such proceedings where the assignments of error are so plainly without merit as to lead to the conclusion that the proceedings were taken merely for delay. The absence of error in the proceedings must be apparent upon a short and cursory examination of the record, requiring no investigation of authorities nor argument to show the untenableness of the assignments of error. If there are doubtful or debatable questions of law...