Crichlow v. Equitable Life Assur. Soc. of U.S.
| Decision Date | 06 June 1932 |
| Parties | CRICHLOW et al. v. EQUITABLE LIFE ASSUR. SOCIETY OF UNITED STATES. |
| Court | Florida Supreme Court |
Suit by the Equitable Life Assurance Society of the United States, a corporation, against W. B. Shelby Crichlow and others. From an adverse decree, defendants appeal.
Appellee's motion to dismiss appeal granted, and appeal dismissed.
See also, 138 So. 481. Appeal from Circuit Court, Manatee County; W T. Harrison, judge.
W. B Shelby Crichlow, of Bradenton, for appellants.
John B. Singeltary, of Bradenton, for appellee.
On December 2, 1931, defendants below, who are appellants here entered their appeal from a final decree of foreclosure against them. The appeal was returnable here March 2, 1932.
On January 2, 1932, before the return day and before a transcript was filed here by appellants, appellee filed its motion under section 4639, C. G. L., section 2920, R. G. S., which provides for quashing proceedings in error when an appeal is taken against good faith and merely for delay. See Norfleet Holding Co. v. Price, 101 Fla. 666, 132 So. 643; Green v. Cook (Fla.) 136 So. 454. This motion, being made by the appellee before the return day of the appeal, was accompanied by a complete transcript of the record in the court below, prepared and filed here by the appellee, in order to demonstrate its contention that the appeal is frivolous and that it should be quashed on appellee's motion.
Such was the proper practice for appellee to pursue, as this court could not ordinarily act on such a motion by appellee prior to the return day and filing of a transcript here by appellants, unless appellee had itself assumed the burden of having prepared and furnished in support of its motion such a complete transcript of the record as would demonstrate that the decree appealed from is obviously free from error, and that therefore the appeal from it is frivolous.
Appellee's motion to quash the proceedings in error not having been disposed of prior to the return day, March 2, 1932, appellants did not undertake to, nor did they, file here a transcript of the record on the return day. They have also failed to file here any assignment of errors. For this failure, appellee now files its separate motion to dismiss the appeal for noncompliance with the rules as to filing of transcript and assignment of errors. Davidson v. Bezant, 101 Fla. 1296, 132 So. 488.
It would have been unnecessary for appellants to have filed here another and additional transcript, since one transcript was already on file, provided appellants had indicated their willingness to adopt the transcript already on file as their own, and had by motion asked leave to have that transcript, by order of this court, allowed to stand as the transcript to be used by them on this appeal.
But the pendency of appellee's motion to quash the proceedings in error did not relieve the appellants from taking some step to have a transcript of the record properly brought here on their own behalf to be made a part of the record on appeal, on or before the return day thereof, as required by law and the rules of this court.
The requirement that a transcript of the record shall be filed by the appellant on or before the return day of any appeal is...
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