Dzialynski v. Bank of Jacksonville
| Decision Date | 24 January 1887 |
| Citation | 23 Fla. 44,1 So. 338 |
| Court | Florida Supreme Court |
| Parties | DZIALYNSKI and others v. BANK OF JACKSONVILLE. |
Appeal from circuit court, Polk county.
On motion to affirm and for damages.
Syllabus by the Court
The fact that the appellee claims that the appeal has been taken merely for delay, and asks for an assessment of damages for a frivolous appeal under the statute, ,) does not entitle him to have the case heard in motion hour upon a motion to affirm and for damages. The case should be heard upon the regular call of the docket like any other case standing for a hearing on its merits, and the application for damages be submitted on such hearing, and not by motion.
A. W. Cockrell & Son, for the motion.
Sparkman & Sparkman and Wall & Turman, contra.
The appellee moves for an affirmance of the decree appealed from on the ground that the appeal was taken merely for delay, and asks that he be allowed the damages authorized in cases of frivolous appeals. The statute provides that, whenever it shall appear to the supreme court that an appeal has been taken merely for delay, the said court may assess damages, not exceeding 10 per cent., for said frivolous appeal. If the appeal has been taken merely for delay, it is frivolous, within the meaning of the statute and we may inflict damages within the limit prescribed.
Whether this appeal is frivolous is, however, not the question before us now, as we arrested the argument upon this point until we should decide whether we would hear argument upon the point made in the motion in motion hour, or defer it till the cause is called in its regular course upon the docket. We have no rule regulating the matter, nor any like paragraph 5 of rule 6 of the supreme court of the United States, which authorizes the uniting, with a motion to dismiss an appeal, a motion to affirm, on the ground that, although the record may show that this court has jurisdiction, it is manifest that the appeal was taken for delay only, or that the question on which the jurisdiction depends is so frivolous as not to need further argument. Under this new paragraph, promulgated November 4, 1878, (97 U.S. vii.,) as an amendment to rule 6, it is held, however, by that court that there must be a color of right to a dismissal before the rule can be invoked; and when a motion was made to affirm, and there was no color of right to a dismissal of the appeal, the case being clearly within the jurisdiction of the court, the motion to affirm was denied. Whitney v. Cook, 99 U.S. 607. The consequence is that, if we had such a rule as that thus construed, we could not under it hear this motion without disregarding the decision referred to, which seems to us to be a proper construction of the rule. No dismissal is asked for; such part of the motion having been abandoned, and the uniting of a motion to dismiss and one to affirm being naturally inadmissible in the absence of a special rule permitting it.
In Amory v. Amory, 91 U.S. 356,...
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Holland v. Webster
...taken merely for delay, before the cause is reached for final hearing in its regular order upon the docket. In the case of Dzialynski v. Bank, 23 Fla. 44, 1 So. 338, decided in 1887, it was held that the fact that the claims that the appeal has been taken merely for delay, and asks for an a......
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