Forcum v. Symmes
| Decision Date | 24 March 1931 |
| Citation | 101 Fla. 1266,133 So. 88 |
| Parties | FORCUM v. SYMMES et al. |
| Court | Florida Supreme Court |
En Banc.
Suit by A. P. Forcum, receiver for the Union Bond & Mortgage Company against F. W. Symmes and others. From an adverse ruling on demurrer to the second amended bill, complainant appeals. On motion to dismiss appeal.
Motion denied in accordance with opinion.
Syllabus by the Court.
A motion to amend the entry of appeal as copied in the transcript of the record will be denied, in the absence of any showing that the transcript copy is not a correct copy of the original as filed and entered in the trial court.
An appeal can only be taken by one who was a party to the cause in the trial court. There can be no appeal without an appellant.
When a party is suing in the trial court in his capacity as receiver of a corporation, and wishes to appeal from an adverse decree, he should appeal in his capacity as receiver, but the omission of the word 'as' from the notice of entry of appeal is not necessarily fatal, where the capacity in which the party appeals can be readily determined from a consideration of the entire record.
A. P Forcum, as receiver for Union Bond & Mortgage Company brought suit in equity against F. W. Symmes and others, and from an adverse ruling on demurrer to his amended bill he filed in the cause an entry of notice of appeal which identified the order appealed from as well as the parties appellee against whom the appeal was taken. The transcript shows that the entry of notice of appeal was by 'A. P. Forcum, Receiver for Union Bond and Mortgage Company, a Florida corporation, Complainant.' Held, that the omission of the word 'as' before the word 'receiver' does not constitute a sufficient ground for the dismissal or quashing of the appeal, as the entry of the notice of appeal construed in connection with the pleadings in the cause, and the use of the word 'complainant' in the caption of such notice sufficiently shows that the appeal was being taken by Forcum in his capacity as receiver and not as an individual.
When the circuit judge of one circuit is by the Governor's order holding court in another circuit, the executive order should be entered of record in the minutes of the court in which he is holding court, and an appeal taken from an order made by him in a cause pending in such court is subject to dismissal unless the executive order so entered of record in such court appears in the transcript of record on appeal, or is subsequently by appropriate procedure seasonably made a part of the record on such appeal. Appeal from Circuit Court, Dade County; Jefferson B. Browne, judge.
D. H. Morgan, of Memphis, Tenn., and Ira C. Haycock, of Miami, for appellant.
Frank E. Lowman, Johnson & Nall, Morcock & Weintraub, and Frank Clark, Jr., all of Miami, for appellees.
The complainant in the suit below was suing in his capacity as receiver. From an adverse ruling on demurrer to the second amended bill, an appeal was attempted to be taken by the complainant in what appellees claim was his individual capacity, and appellees suggest that this court is without jurisdiction and should dismiss the cause sua sponte.
The transcript shows that entry of notice of appeal was by 'A. P. Forcum, Receiver for Union Bond & Mortgage Company, a Florida Corporation,' the word 'as' before the word 'receiver' being omitted in both the caption and body of such notice; and the same omission was made in the assignment of error.
The motion of appellant to amend in an effort to cure this omission was made after the time allowed by law for taking an appeal had expired. And the motion to amend thus filed in this court appears to relate, not to the original entry of appeal, but to the caption of the transcript of the record in this cause and 'subsequent pleadings.' A notice of entry of appeal is not a pleading. Furthermore, it is not claimed that the trancript does not correctly copy the proceedings below, including the entry of notice of appeal. If such a motion is maintainable at all after the six months within which an appeal could be taken has expired, it should have first asked permission to amend the original notice of appeal and the entry of such notice on the chancery order book, and then the correction of the transcript to conform to the records in the court below as thus amended. So the motion to amend is defective, and must be denied. And it probably comes too late. West v. Johnson, 66 Fla. 4, 62 So. 913.
Now, the transcript shows that the original and two amended bills were properly captioned--showing that the suit was by Forcum in his capacity as receiver, in conformity with the allegations of the bills. But the word 'as' being omitted from the entry of appeal, it is contended by appellees that the appeal was by Forcum as an individual, the words 'receiver for Union Bond & Mortgage Company' being descriptio personae; that Forcum as receiver and Forcum as an individual are different parties in law; that this is the effect of several of our previous decisions. It is further insisted that the real complainant in the court below has never appealed, and the motion to amend, even if properly drawn, not having been filed within six months from the date of the entry of the order attempted to be reviewed, comes too late; that the statute requires that appeals from both interlocutory orders and final decrees must be within six months from the entry of the order or decree appealed from. Section 4960, Comp. Gen. Laws 1927.
It may be that an appeal, which identifies the order or decree appealed from, taken by any one of several necessary parties, but omitting other necessary parties, might transfer jurisdiction of the cause (the subject-matter) to this court, so as to allow amendment to bring in the other necessary parties later, even after the expiration of the six months period if the omitted parties voluntarily come in. But it must be admitted that the appeal must be taken by a party to the cause. There can be no appeal without an appellant, and the appellant must have been a party to the cause in the trial court.
On the other hand, it is insisted that under sections 4635, 4636 Comp. Gen. Laws 1927, an appeal should not be dismissed for want of proper parties, if the appeal, recorded within the time allowed by law, shall...
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...is that a non-party is a ‘stranger to the record’ who cannot ‘transfer jurisdiction to the appellate court.’ ” (quoting Forcum v. Symmes, 101 Fla. 1266, 133 So. 88 (1931))). But see Smith v. Chepolis, 896 So.2d 934, 935–36 (Fla. 1st DCA 2005) (finding nonparty deemed responsible for workers......
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... ... holdings and dismiss the appeal upon appellee's motion ... calling attention to the defect. The ... [173 So. 434] ... cited case of Forcum v. Symmes, 101 Fla. 1266, 133 ... So. 88, relied upon by appellee is not inconsistent with the ... previous holdings dealing with defects as to ... ...
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...v. Miami Bank & Trust Co., 1934, 115 Fla. 141, 155 So. 157; Bagley v. State, Fla.App.1960, 122 So.2d 789, 83 A.L.R.2d 860; Forcum v. Symmes, 101 Fla. 1266, 133 So. 88; Sarasota-Fruitville Drainage District v. Certain Lands, Fla.1955, 80 So.2d 335; and King v. Brown, Fla.1951, 55 So.2d ...
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...‘transfer jurisdiction to the appellate court.’ " Barnett v. Barnett, 705 So.2d 63, 64 (Fla. 4th DCA 1997) (quoting Forcum v. Symmes, 101 Fla. 1266, 133 So. 88, 89 (1931) ). Here, although YHT had the opportunity to challenge the trial court's denial of its motion to intervene, YHT failed t......