Brooks v. Miami Bank & Trust Co.

• Decision Date: 29 May 1934
• Citation: 115 Fla. 141,155 So. 157
• Parties: BROOKS v. MIAMI BANK & TRUST CO. et al.
• Court: Florida Supreme Court

155 So. 157

115 Fla. 141

BROOKS v. MIAMI BANK & TRUST CO. et al.

Florida Supreme Court

May 29, 1934

En Banc.

Suit by John G. Brooks against the Miami Bank & Trust Company and others. From a decree dismissing the amended bill of complaint, complainant appeals. On complainant's motion to amend the entry of appeal.

Motion denied.

BROWN J., dissenting.

Appeal from Circuit Court, Dade County.

COUNSEL

Stuart Mackenzie and W. F. Parker, of Miami, for appellant.

S. D Weissbuch and S. S. Silverman, both of Miami, for appellees.

OPINION

WHITFIELD Justice.

The following motion to amend the entry of appeal filed herein was presented here April 12, 1934:

'John G. Brooks, Appellant, vs. Miami Bank & Trust Company, a banking corporation organized under the laws of the State of Florida, H. J. Spurway, as Receiver of the City National Bank in Miami, Frank L. Herbert, as Receiver of First Mortgage & Bond Company, and Tatum Brothers Company, a corporation, Appellees.

'Motion

'Now comes John G. Brooks, the appellant in the foregoing cause, and respectfully represents to the Court that on, to-wit: the 5th day of September, 1933, a decree was made and entered in the Circuit Court for the Eleventh Judicial Circuit in and for Dade County, in Equity, sustaining the motion of the defendant H. J. Spurway, as receiver of said City National Bank in Miami, to dismiss appellant's amended bill of complaint; that on, to-wit: the 28th day of February, 1934, the said John G. Brooks, appellant, entered notice of appeal from said order of September 5, 1933, to the Supreme Court of the State of Florida; that said appeal was made returnable in said notice to the 15th day of April, 1934; that the ninety days in which said appeal could have been made returnable does not expire until the 29th day of May, 1934, and your petitioner respectfully moves the Court that an order be made and entered herein amending said notice of appeal, and making the return thereof the 28th day of May, 1934.

'Stuart MacKenzie

'W. F. Parker

'Solicitors for appellants.'

The entry of appeal and the certificate of its record entry are as follows:

'John G. Brooks, Complainant, vs. Miami Bank & Trust Company, a banking corporation organized under the laws of the State of Florida, H. J. Spurway, as Receiver of said City National Bank in Miami, Frank L. Herbert, as Receiver of First Mortgage & Bond Company, and Tatum Brothers Company, a corporation, Defendants.

'Notice of Appeal

'Comes now John G. Brooks, the complainant in the foregoing cause, and enters this his appeal from the final decree made and entered herein on the 5th day of September, 1933, which said decree was recorded on, to-wit,--the 5 day of September, 1933, in Chancery Order Book Number 301, at Page 252, in the office of the Clerk of said Court, in the Circuit Court for the Eleventh Judicial Circuit of Florida, in and for Dade County, in Chancery, Number 29579-A, to the Supreme Court of Florida at Tallahassee, Florida, and makes said appeal returnable to the 15th day of April A. D. 1934, and gives to the defendant H. J. Spurway, as receiver of said City National Bank in Miami, and all others, notice of this appeal.

'The Clerk of the above styled Court will please enter this notice of appeal in Chancery Order Book.

'Dated this the 28 day of February, 1934.

'John G. Brooks,

'Complainant-Appellant.

'By Stuart MacKenzie

'W. F. Parker

'Solicitors for Complainant-Appellant.'

'State of Florida, County of Dade--SS:

'I, E. B. Leatherman, Clerk of the Circuit Court in and for Dade County, Florida, do hereby certify that the above and foregoing is a true and correct copy of notice of appeal in the case of John G. Brooks vs. Miami Bank & Trust Co., et al., filed the 28 day of Feb. 1934, and recorded the 28 day of Feb. 1934 in Chancery Order Book 314, on page 450.

'E. B. Leatherman,

'Clerk of Circuit Court,

'By J. M. Cowart, D. C.'

The questions to be determined are whether the filing in a chancery case of an entry of appeal which is made returnable on a Sunday is legally sufficient to transfer the cause to the jurisdiction of the appellate court, and whether the recording of such entry of appeal so returnable in the chancery order book is, under section 4964(3172), Compiled General Laws, sufficient 'to give to the Supreme Court complete jurisdiction over the person of the appellee' in the cause. If the filing of an entry of appeal made returnable on a Sunday is legally insufficient to transfer the cause to the jurisdiction of the appellate court, or if the recording in the chancery order book of an entry of appeal that is made returnable on a Sunday is legally insufficient to give the appellate court jurisdiction of the appellees in the cause, such entry of appeal made returnable on a Sunday cannot be amended to state a legal and effective return day after the expiration of the six months' period fixed by the statute for taking chancery appeals, so as to make the filing and recording of the entry of appeal legally effective to give the appellate court jurisdiction of the cause and of the appellees, since that would in effect allow an appeal to be taken and made effective after the time limited by the statute, thereby violating the statute which specifically prescribes the time within which appeals in chancery may be taken. Rabinowitz v. Houk, 100 Fla. 44, 129 So. 501. This rule applies even though the appeal be only a step in the cause, since the statutes provide that an entry of appeal 'must be taken within six months after the entry of the order or decree appealed from,' section 4960(3168), Compiled General Laws, 'and shall be returnable to a day, either in term time or vacation more than thirty days and not more than ninety days from the date of the' filing of the entry of appeal. Sections 4618(2908), 4965(3173), Compiled General Laws; Provident Savings Bank & Trust Co. v. Devito, 98 Fla. 1076, 125 So. 235. That the entry of appeal 'shall be filed with the clerk of the court whose order or decree is to be reviewed, and by such clerk shall be forthwith entered in the chancery order book; and no other or further notice of such appeal shall be required to be given or served in order to give to the Supreme Court complete jurisdiction over the person of the appellee, but the record of such entry in the chancery order book shall be taken and held to be sufficient notice to the appellee of the taking of said appeal and of the pendency thereof in the Supreme Court.' Section 4964(3172), C. G. L.

The appellate court must have jurisdiction of the cause and of the parties appellant and appellee before it can review a cause on appeal; and an entry of appeal which is made returnable to a day not authorized by the statute, does not bring the cause or the appellees within the jurisdiction of the appellate court. Mutual Life Ins. Co. v. Hartley, 92 Fla. 237, 109 So. 421; Provident Savings Bank & Trust Co. v. Devito, 98 Fla. 1076, 125 So. 235. An appearance by the parties does not give the appellate court jurisdiction of a cause when the entry of appeal is made returnable to a day that is not authorized by the statute. Griffith v. Henderson, 52 Fla. 507, 42 So. 705; Adams v. State, 94 Fla. 1156, 115 So. 530; Stovall v. Stovall, 77 Fla. 116, 80 So. 744.

An entry of appeal that is defective only as to parties may be cured by appearances in the cause. McJunkins v. Stevens, 88 Fla. 559, 102 So. 756; Henry Vogt Mach. Co. v. Milton Land & Inv. Co., 74 Fla. 116, 76 So. 695; Rabinowitz v. Houk, 100 Fla. 44, 129 So. 501.

The Supreme Court has appellate jurisdiction in all cases in equity; but such jurisdiction must be invoked in particular cases by filing in the office of the clerk of the circuit court within six months from the date of the entry of the order or decree appealed from, a proper and legal entry of appeal. Such entry of appeal must, in terms importing legal sufficiency, designate the order or decree appealed from and the parties to the appeal, and also state a legal return day so that the cause may thereby be transferred to the jurisdiction of the appellate court; and the entry of appeal must be forthwith recorded by the clerk in the chancery order book in order to give the appellate court jurisdiction of the appellees designated in the entry of appeal, unless the appellees otherwise duly appear in the cause in the appellate court. The due filing, within the time allowed by the statute, of an entry of appeal that is legally sufficient in stating the parties, the return day, and the identity of the decree or order appealed from, is essential to transfer the cause to the jurisdiction of the appellate court; and the due recording of the legally sufficient entry of appeal in the chancery order book is necessary to give the appellate court jurisdiction of the appellees, unless they appear in the cause in the appellate court. An entry of appeal which is not made returnable to a day that is by the statute a legal return day for an entry of appeal, is...