Da Costa v. Dibble

Citation45 Fla. 225,33 So. 466
PartiesDA COSTA v. DIBBLE et al.
Decision Date17 December 1902
CourtFlorida Supreme Court

In banc. Appeal from circuit Court, Alachua county; William A Hocker, Judge.

Bill by A. J. Da Costa, executor of Mary E. Shuford, against William Dibble and Jonathan B. Bunce. Decree for defendants, and complainant appeals. Appeal dismissed.

Carter and Maxwell, JJ., dissenting.

Syllabus by the Court

SYLLABUS

1. After an appeal has been duly entered and the cause thereby transferred to this court, the clerk of the circuit court is not invested with authority to dismiss said appeal, and if such a dismissal is made by said clerk it must be regarded as a nullity. The dismissal of such an appeal must be in the appellate court, and it may be done on the voluntary application of an appellant, or for cause on motion of an appellee.

2. A subsequent appeal entered by the same party from the same decree, while his prior appeal is still pending and effective, is irregular and will be dismissed.

3. While a party may abandon proceedings under an appeal duly entered by a failure to file the required transcript of the record, and thereby forfeit his right to have the case reviewed on its merits, and subject it to dismissal in the appellate court, he should not be permitted to attempt to have said appeal dismissed by the clerk of the circuit court and enter another appeal from the same decree to the appellate court.

4. Where an appellant neglects to file transcript of the record and shows no good cause for his failure so to do, his appeal will be dismissed.

On Rehearing.

5. A petition for a rehearing, which suggests nothing that has not been fully considered by the court in making its decision should be denied.

6. Where the sole ground of a petition for a rehearing is that the court overlooked and failed to consider certain facts and these facts were fully considered and actually constituted the points of difference on which the court divided, as disclosed in the opinions, the petition will be denied.

COUNSEL C. C. Thomas, for appellant.

S. Y. Finley, for appellees.

OPINION

PER CURIAM.

After the filing of the mandate of this court in the circuit court upon the reversal of the decree (Da Costa, Executor, v Dibble et al., 40 Fla. 418, 24 So. 911), an order was entered overruling the plea, and leave granted to defendant to file an answer. Thereupon an answer was filed, to which there was a general replication, followed by testimony taken before a master, and upon a final hearing a decree was entered July 25, 1901, dismissing the bill at complainant's cost. The transcript filed here shows that complainant on the 21st day of January, 1902, entered an appeal from the decree dismissing the bill to the first day of the present term of this court, and a transcript, made up under directions filed subsequent to the entry of the appeal, was filed here June 30, 1902.

In October last counsel for appellees made a motion in this court to dismiss an appeal entered in this cause by complainant on the 18th day of October, 1901, to the first day of the following January term, because no transcript of the record thereunder had been filed in this court, and also to dismiss the appeal entered on the 21st day of January, 1902, because when taken there was a prior appeal pending in this court and not properly dismissed. From certified copies of record entries filed on the hearing of the motion it appears that complainant, on the 18th day of October, 1901, duly entered an appeal from the decree in the cause to the first day of the January term of this year, and the entry was duly recorded in the chancery order book. It also appears that on the 20th day of January of this year, and six days after the beginning of the term to which said last-mentioned appeal was returnable, counsel for complainant file a praecipe with the clerk of the circuit court in which the decree was entered for a dismissal of said appeal, and the clerk entered what purports to be an order dismissing the appeal. The entry of the appeal on October 18th was to the following January term of this court, and, being duly entered and recorded, was effective to transfer to this court the cause for a rehearing on the decree dismissing the bill. Southern Life Insurance and Trust Company v. Cole, 4 Fla. 359; State ex rel. Shrader v. Phillips, 32 Fla. 403, 13 So. 920; Neubert v. Massman, 37 Fla. 91, 19 South, 625. The action of the clerk, so far as a dismissal of the appeal is concerned, must be regarded as a nullity, as he is not invested with authority to dismiss an appeal to this court duly entered and recorded. The dismissal of such an appeal must be in the appellate court, and it may be done on the voluntary application of an appellant, or for cause on motion of an appellee. The practice and rules for the government of this court contemplate that appeals to it must be dismissed here. When the court is in session, plaintiffs in error or appellants may at any time have a voluntary dismissal of causes proper to be dismissed, and, by rule 24 (18 South. ix) for the government of this court, they may voluntarily dismiss a writ of error or appeal during vacation by filing with the clerk of this court a praecipe signed by the attorney of record in this court, upon payment of the costs of the writ of error or appeal. If the plaintiff in error or appellant fails to file in the supreme court at the time required by law a duly certified transcript of the record required, and serve a copy on the opposite party, the cause may be dismissed under rule 12 (18 South. vii) for the government of this court, and likewise the cause may be dismissed in this court for a failure to file abstracts of the record, or, in lieu thereof, copies of the transcript, as provided in rule 20, as amended in January, 1899 (26 South. v).

We held in American Contract & Finance Co. v. Perrine, 40 Fla. 412, 24 So. 484, that a subsequent appeal entered by the same party from the same decree, while his prior appeal is still pending and effective, is irregular and will be dismissed. In referring to cases holding that under such circumstances the second appeal is a nullity, it was said: 'Without committing ourselves to the proposition that the second appeal is a nullity, as held by these authorities, we are entirely satisfied that it is irregular for a party to enter a second appeal from the same decree while his first is still pending and effective, and that because of such irregularity the second appeal ought to be dismissed.' The facts under which this ruling was made were that on the 30th day of March, 1898, an appeal was duly entered of record from decrees made prior thereto to the first day of the following January term of this court, and on the 9th of May of that year assignments of error and directions for making up the transcript were filed, and copies served on the opposite parties, who gave no additional directions. No transcript was shown to have been made up under the directions. On the 30th of May appellants, without dismissing their previous appeal, entered and had recorded another appeal returnable to a day within the June term of this court, and under this appeal assignments of error and directions were filed, and a transcript made up, which was filed in this court on the first day of the June term. Under the last directions filed by appellant both entries of appeal were incorporated in the transcript. This case clearly holds, and we think correctly, that a subsequent appeal entered by the same party from the same decree, while there is a prior pending and effective one, is irregular.

It was held in Garrison v. Parsons, 41 Fla. 143, 25 So. 336, that an appeal taken within a period less than 30 days from the first day of a succeeding term of this court returnable to the first day thereof conferred no jurisdiction upon this court, and a subsequent appeal duly taken by the same party from the same decree was permissible. A void appeal does not transfer the cause to this court. Under the former practice of this court provided by statute for taking appeals at law, it was held in Baker v. Chatfield, 23 Fla. 62, 1 So. 779, that an abandonment of an attempt to take an appeal, or an omission to perfect an appeal by giving the required appeal bond, did not preclude the subsequent suing out of a writ of error and the use of a bill of exceptions previously made up in the case. However, under the statute permitting the appeal, a bond was essential to its effectiveness, and where there is a void or ineffectual appeal a second one, as shown, may be entered.

In Glasser v. Hackett, 37 Fla. 358, 20 So. 532, the rule in reference to two suits pending in trial courts was applied to writs of error, and it was held that a motion to dismiss a writ of error because of the pendency of a prior writ of error is in the nature of a plea in abatement, and should not be granted where the first one is wholly ineffectual to accomplish its purpose, or where it has been dismissed. In that case a writ of error, effectual in every respect, was pending when the second one was sued out to a subsequent term of this court, but the former one had been dismissed by formal order here when the motion to dismiss the latter was made. In the case before us the appeal entered in October, 1901, was effective to transfer the cause to this court, and there has never been any dismissal of it, so the principle announced in Glasser v. Hackett, supra, restricted to the facts of the case, does not apply. A party may abandon proceedings under an appeal duly entered by a failure to file the required tanscript of the record, and thereby forfeit his right to have the case reviewed on its merits and subject it to dismissal in the appellate court; but should he be...

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