Griffith v. Henderson

• Decision Date: 18 December 1906
• Citation: 42 So. 705,52 Fla. 507
• Parties: GRIFFITH v. HENDERSON.
• Court: Florida Supreme Court

42 So. 705

52 Fla. 507

GRIFFITH v. HENDERSON.

Florida Supreme Court, Division A.

December 18, 1906

Appeal from Circuit Court, Washington County; Francis B. Carter Judge.

Action by John G. Henderson against Thomas W. Griffith. Judgment for plaintiff, and defendant appeals. Dismissed.

Syllabus by the Court

SYLLABUS

If an appeal is taken within 30 days from the first day of the next succeeding term of the Supreme Court, it must, by the terms of the statute, be made returnable to a day in such term more than 30 days and not more than 50 days from the date of such appeal. If in such case the appeal be made returnable to the first day of the term, it is entered in direct violation of the statute and confers no jurisdiction upon the Supreme Court.

An appeal entered on May 17, 1906, and made returnable 'to the Supreme Court of Florida at its term beginning on the second Tuesday of June, A. D. 1906,' was by the language used made returnable to the first day of the June term, 1906 which by law began on the second Tuesday of June, 1906.

Where an appeal is taken on May 17, 1906, and made returnable to the first day of the June term, 1906, which day was the 12th day of June, and less than 30 days from the entry of the appeal, such appeal is taken in direct violation of the statute, and is void, and confers no jurisdiction on the Supreme Court of the subject-matter of the appeal.

Where an appeal to the Supreme Court made returnable in violation of the statute, so as to be void and to confer no jurisdiction of the subject-matter upon the Supreme Court the appearance of the appellee cannot of itself give the court jurisdiction of the subject-matter of the appeal, and such an appeal, so taken, should be dismissed by the court sua sponte.

COUNSEL Maxwell & Reeves, for appellant.

Benj. S. Liddon, for appellee.

OPINION

WHITFIELD J.

The entry of appeal and the indorsement thereon in this cause are in the following words:

'Thomas W. Griffith, the respondent in the above-entitled cause, hereby applies for and enters an appeal in the above-entitled cause from the order or decree herein made and rendered in this cause on the 5th day of May, A. D. 1906, to the Supreme Court of Florida, at its term beginning on the second Tuesday of June, A. D. 1906. The clerk of said court will forthwith record this entry of appeal in the chancery order book of the said court, and indorse on the back hereof the time and page of such entry.'

'Filed and recorded in chancery order book at page 128, this May 17th, 1906. W. L. Lockey, Clerk Circuit Court.'

If an appeal is taken within a period of less than 30 days from the first day of the next succeeding term of this court, it must be made returnable to a day in such term more than 30 days and not more than 50 days from the date of such appeal. If in such cases the appeal be made returnable to the first day of the term, it is entered in direct violation of the law and confers no jurisdiction upon this...