Gaskins v. Mack

• Decision Date: 15 February 1926
• Parties: GASKINS et al. v. MACK et al.
• Court: Florida Supreme Court

107 So. 918

91 Fla. 284

GASKINS et al. v. MACK et al.

Florida Supreme Court, Division A.

February 15, 1926

Suit by Maude E. Gaskins, joined by her husband, against Peter Mack and others for partition. From a decree dismissing the bill plaintiffs took two appeals, the first of which was dismissed.

Second appeal dismissed.

See also, 107 So. 654.

Syllabus by the Court

SYLLABUS

Where necessary parties are omitted from an appeal, it will be dismissed.

In suit for partition, persons named as defendants alleged to have interests or certain proportionate shares in property are necessary parties; in suit for partition, persons named as defendants alleged to have interests or certain shares in land are necessary parties, and, in appeal from order dismissing bill, they should be named as parties (Rev. Gen St. 1920, §§ 3204, 3205). In a suit for partition of lands the persons named as defendants, who are alleged to have interests or certain proportionate shares in and to the property sought to be partitioned, are necessary parties, and, in an appeal taken from an order dismissing the bill, they should be named as parties to the appeal.

More than one appeal is allowable from same decree in chancery within six months from its entry, where there has been abandonment or dismissal of first appeal before second was taken (Rev. Gen. St. §§ 3167, 3168). An appeal in chancery is by statute made a matter of right, and may be taken within six months after the entry of the order or decree from which the appeal is taken. More than one appeal is allowable from the same decree within six months from its entry where there has been an abandonment or dismissal of the first appeal before the second is taken.

The appearance in the appellate court of a party in the cause below, who was made a party to the appeal but was served with no citation, waives his objection to the court's jurisdiction of him when he moves to dismiss the appeal upon grounds not relating to the jurisdiction of his person.

An appeal may be voluntarily dismissed by the appealing party, where it does not appear that such dismissal would prejudice the rights of appellee.

When an appeal is dismissed upon the voluntary action of the appellant, the case stands in the lower court as if no appeal was taken.

When a suit in chancery is pending against several named defendants and others, as unknown, an order of dismissal, in which the case is stated as against one named defendant, and the order recites that the equities are found to be in favor of such defendant and the cause dismissed as to him, will be construed to be an order of dismissal as to all defendants, and, if all the defendants alleged to be interested in the subject-matter of the suit are not named as appellees, the appeal will be dismissed. Appeal from Circuit Court, Orange County; C. O. Andrews, judge.

COUNSEL

Treadwell & Treadwell, of Arcadia, for appellants.

Alex. St. Clair-Abrams, of Jacksonville, for appellees.

OPINION

PER CURIAM.

In June, 1924, the appellant and her husband exhibited their bill in chancery against Peter Mack and twenty-five other persons and all unknown parties claiming an interest in certain lands described in the bill. The purpose of the bill was to effect a partition of the lands described.

It was alleged that Eudora O. Taylor died November 18, 1892, seized in fee simple of the lands described; that she was the mother of complainant and other minor children; that such children and the father of the complainant, who was the husband of Eudora, survived her; that the children of Eudora and her husband, J. D. Taylor, inherited the lands, J. D. Taylor taking an undivided one-eighth interest; that the complainant had acquired the remaining seven-eighths interest, so that the complainant and the defendant own the land as tenants in common; that the other defendants named claim a certain quantity of interest in the lands but such interest was unknown to the complainant.

Peter Mack answered the bill in August, 1924, and incorporated a demurrer to the bill.

Decrees pro confesso were taken against all of the defendants named except Peter Mack, W. S. Branch, Jr., Bertha Beacham Catherine Starbuck, and T. A. Yancey, and against all unknown parties claiming an interest in the land.

Evidence was taken in behalf of complainant and defendant Peter Mack.

A decree was entered on April 4, 1925, declaring the equities in the cause to be in favor of the defendant Peter Mack, and dismissing the bill. The decree ignores the other defendants, both in the title of the cause and in the body of the decree.

Two appeals were taken from that decree: The first on October 8, 1925, in which all the defendants were named as appellees including the unknown defendants. The second appeal was entered on October 26, 1925, in which all the defendants known and unknown were made appellees except T. K. Miller, Blanche Kiner, and A. J. Norris.

The first appeal was dismissed by an order of this court dated October 20, 1925, upon motion of the appellants.

No decrees pro confesso were entered against W. S. Branch, Jr., Bertha Beacham, Catherine Starbuck, or T. A. Yancey. No final decree was entered against any of the defendants, nor were T. K. Miller, Blanche Kiner, and A. J. Norris made parties to the second appeal.

While the first appeal, taken October 8, 1925, was pending, on the same day the appeal was taken, complainants' solicitors served notice upon the solicitor for Peter Mack that the complainants would upon October 20, 1925, move the circuit court for an order for the re-establishment of an 'original amendment to the bill of complaint heretofore filed in said cause by consent of the solicitor for respondent Peter Mack, on or about the 22d day of October, A. D., 1924, and either lost or destroyed.'

A copy of the alleged amendment was attached to the motion as Exhibit A, and consisted of the description of about 228 lots of Palmetto Company's addition to Winter Park, added to the subject-matter of the original bill. The exhibit contained a copy of the written consent of the solicitor for Peter Mack, dated October, 22, 1924, to the filing of the amendment.

On October 15, 1925, Peter Mack by his solicitor filed his objection to the 'establishing or re-establishing the amendment to the bill of complaint.' The grounds were that the chancery progress docket of the clerk did not show that 'any amendment was ever filed and no amendment to the bill can be found in the clerk's office,' and upon the further ground that, an appeal having been taken in the cause by the complainant, the circuit court had no jurisdiction in the cause; the same having been transferred to the Supreme Court on the filing of the entry of appeal.

On October 20th following, the complainants obtained a dismissal of the first appeal, and on October 22, 1925, the chancellor ordered the re-establishment of the amendment 'as filed as of the 22d day of October, A. D. 1924,' and ordered the clerk to file the amendment as of that date. To the paper ordered re-established was attached a copy of the answer of Peter Mack to the amendment, dated October 25, 1924.

Then the second appeal was taken on October 26, 1925.

On January 19, 1926, the appellee Peter Mack moved to dismiss the second appeal; the grounds being in substance: That no final decrees had been entered in favor or against any of the appellees against whom decrees pro confesso had been entered: the only decree rendered was in favor of Peter Mack; that when the first appeal was pending, and when the complainant moved to dismiss it, a question was pending affecting the pleadings in the case cognizable only by the Supreme Court of which the appellant failed to advise this court; that under the act of 1907 the appellee Mack was not required to take notice of the entry of the second appeal; that the appellants were not entitled to but one appeal, except by order of this court, and then not without notice to the appellee; that no notice was given to the appellee Mack of the motion to dismiss the first appeal; that the first appeal was dismissed without leave to enter another from the same decree; that the order re-establishing the alleged amendment to the bill was void, because an appeal was pending when the motion to re-establish the amendment was made, and there was no evidence that the amendment had ever been filed or delivered to the clerk or any of his employees.

The...