Holland v. Webster
| Decision Date | 06 March 1901 |
| Citation | 43 Fla. 85,29 So. 625 |
| Parties | HOLLAND et al. v. WEBSTER (two cases). |
| Court | Florida Supreme Court |
Appeals from circuit court, Duval county; Rhydon M. Call, Judge.
Actions by Mary E. Webster, by her next friend, E. I. Robinson against Georgia V. Holland and James J. Holland, and by Wilbur P. Webster against the same defendants. Judgments for plaintiffs, and defendants appeal. Motion to quash the appeal in each case. Granted.
Syllabus by the Court
1. Under sections 1279, 1462, Rev. St., the supreme court is authorized and required to entertain and decide motions to quash proceedings in error or by appeal, based upon the ground that such proceedings are taken merely for delay notwithstanding the case has not been reached for final hearing upon regular call of the docket. Mabry, J dissenting.
2. It is not the purpose of sections 1279, 1462, Rev. St., to require the court, upon motions to quash based upon the ground that the proceedings are taken merely for delay, to enter into an examination of or decide doubtful or debatable questions properly raised by the assignments of error, but its purpose is to enable the court to quash such proceedings where the assignments of error are so plainly and palpably without merit as to lead to the conclusion that the proceedings were taken merely for delay. The absence of error in the proceedings must be apparent upon a short and cursory examination of the record, requiring no investigation of authorities nor argument to show the untenableness of the assignments of error. If there are doubtful or debatable questions of law or fact raised by the assignments of error the court will not investigate or decide them upon motions of this character, but will hold the case for hearing in its regular order upon the docket. Mabry, J., dissenting.
3. Upon motions to quash proceedings in error or by appeal upon the ground that they are taken merely for delay, the party moving will not be heard either orally or by brief, for the reason that the assignments of error must, on an examination of the record, be so wholly devoid of merit as to require no argument on his part to show their untenableness. The party opposing the motion will, however, be heard orally or by brief in opposition to the motion, and if, upon examination of the record and consideration of the argument or brief of the party opposing the motion, the court finds that there is properly presented any question of law or fact, as to the proper decision whereof the court entertains a doubt, the court will not enter into a minute examination of that question and the authorities bearing thereon, but will leave the cause to its proper place on the docket for hearing in its regular order.
4. Husband and wife joined in the execution of a mortgage in due form upon the wife's separate statutory real estate, and the wife thereupon executed a written acknowledgment, attached to said mortgage, whereby she acknowledged that she made herself a party to and executed said mortgage for the purpose of conveying her separate estate and interest in and to the lands in said mortgage described and granted, and that she did the same freely and voluntarily, without compulsion, constraint, apprehension, or fear from her said husband. The acknowledgment purports on its face to have been made and executed by the wife separate and apart from the husband, and in the presence of a certain named officer, authorized to take acknowledgments of married women. The officer also attached to said acknowledgment his certificate under seal to the effect that the wife, who he certifies was well known to him as the person who executed the mortgage and as the wife of the husband, personally appeared before him, and, being at the time separate and apart from the husband, she did then and there make and execute the acknowledgment before mentioned, and that her name was to said acknowledgment with her own hand subscribed, and her seal affixed in his presence. Pleas interposed by the wife to a bill filed to foreclose said mortgage, to the effect that the mortgage is void as to her because the certificate of the officer does not show that she executed the same freely and voluntarily and without fear or compulsion of her husband, as the statute in such cases required, were properly overruled, and it requires no argument to show the untenableness of an assignment of error based on such ruling.
5. The law is settled in this state that when a married woman has executed and acknowledged a mortgage upon her separate statutory real estate, and appeared before an officer authorized to take her acknowledgment, and the officer certifies a full compliance with the statute relating to her acknowledgment, his certificate, except fraud or duress be shown, must be held conclusive of the facts it asserts. In proceedings to foreclose such mortgage, exceptions to those portions of an answer filed by the married woman alleging that she was not separate and apart from her husband when she made her acknowledgment, but not charging fraud or duress, are properly sustained, and it requires no argument to show the untenableness of an assignment of error based on such ruling.
6. In proceedings to foreclose a mortgage upon a married woman's separate statutory real estate, where the mortgage and acknowledgements are made parts of the bill to foreclose, exceptions to those portions of the answer which present merely conclusions of the pleader as to alleged defects in the certificate of acknowledgment, which, upon a bare inspection of the mortgage and acknowledgment, the execution of which are not denied, appear to be erroneous, are properly sustained; and it requires no argument to show the untenableness of an assignment of error based on such ruling.
7. An amended answer which presents the identical matters contained in previous answers and pleas, which matters had been properly held in proceedings upon such previous answers and pleas to constitute no defense, and which matters so alleged in the amended answer present only conclusions of the pleader as to alleged defects in a certificate of acknowledgment of a mortgage made part of the bill of complaint, which conclusions, upon a bare inspection of the certificate of acknowledgment, the execution of which is not denied, appear to be erroneous, is properly stricken on motion; and it requires no argument to show the untenableness of an assignment of error based upon such ruling.
T. A. & B. B. MacDonell, for appellants.
E. P. Axtell, for appellees.
In each of these causes appellee moves to quash the appeal upon the ground that same is frivolous, without merit, taken against good faith and merely for the purpose of delay. There is nothing before the court tending to show that the appeals were taken against good faith, but it is insisted that they are frivolous and taken merely for delay.
The first question to be decided is whether the court will entertain motions to quash appeals upon the ground that they are 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 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; that 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. The statute referred to in that case was section 13 of the act of February 10, 1832, which, as it appears as section 14, p. 842, McClel. Dig., reads as follows: '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 ten per cent. for said frivolous appeal.' At the time of the decision referred to there was also another statute in force (section 50, c. 1096, Acts 1861), which, as it appears as section 6, p. 844, McClel. Dig., reads as follows: 'Courts of error shall have the power to quash the proceedings in error in all cases in which error does not lie or where they are taken against good faith.' It will be observed that there is nothing in the language of either statute which authorized or required the court to entertain a motion to quash or dismiss proceedings by appeal or in error upon the ground that the same were frivolous or taken merely for delay, or which authorized or required the court to entertain and decide motions to affirm upon that ground, before the cause was reached for final hearing in its regular order. We are satisfied that, in the absence of a statute authorizing motions to quash or dismiss upon that ground, the court would not be required to entertain and decide such motions before the cause is reached for final hearing.
By section 1279, Rev. St. 1892, it is provided that 'courts of error shall have power to quash proceedings in error in all cases in which error does not lie, or where they are taken against good faith, or merely for delay, and may decree in such case damages against the plaintiff in error not exceeding ten per cent.'; and by section 1462 of the same Revised Statutes it is provided that 'the provisions of law relating to writs of error governing the filing of transcripts of record and proceedings thereon and filing assignments of errors, the duty of the appellate court in examining the record and giving judgment, in causing execution of its decrees and in quashing writs of error, shall be applicable to appeals in...
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