Jackson v. Haisley

• Decision Date: 30 May 1891
• Parties: JACKSON et al. v. HAISLEY et al.
• Court: Florida Supreme Court

9 So. 648

27 Fla. 205

JACKSON et al. v. HAISLEY et al.

Florida Supreme Court

May 30, 1891

Appeal from circuit court, Marion county; JESSE J. FINLEY, Judge.

Syllabus by the Court

SYLLABUS

1. The provision of section 3, p. 840, McClel. Dig., that no appeal shall be granted to the original plaintiff in any suit unless such plaintiff shall first pay all costs which may have accrued up to the time when the appeal is prayed, applies to cases at law, but not to those in equity, and contemplates that the clerk shall, upon the application of such plaintiff tax the costs within the time allowed for appealing, so as to enable the plaintiff to know what he is to pay.

2. Where an original plaintiff in a commonlaw action has entered his appeal, and given bond and secured an approval of the same within the time allowed by law for appealing, and his failure to pay within such time the costs accrued up to the appeal (section 3, p. 840, McClel. Dig.) is due solely to the default of the clerk in not taxing them within the time allowed for appealing, and the plaintiff has been reasonably active in endeavoring to secure a taxation of them within such time, and has promptly paid the costs upon their being taxed after the expiration of the appeal period, the appeal will not be dismissed on account of their not being paid within such period.

3. The allowance by a circuit judge of time beyond a term of court for settling a bill of exceptions has no effect to extend the time prescribed by the statute for appealing; its only purpose is to give time for making a record of proceedings in pais in that court for the appellate court to act on.

4. The omission of an agent executing an appeal-bond to file his power of attorney at the time of executing the bond does not affect the appeal.

COUNSEL Thomas F. King, for motion.

R. L Anderson, opposed.

OPINION

RANEY C.J.

Appellants sued appellees in ejectment. The jury rendered a verdict that the defendants were not guilty, and on the same day, March 25, 1889, at the spring term of the circuit court of Marion county, judgment was entered accordingly. A motion for a new trial was made, and on April 6th an order overruling it was entered, and 60 days were allowed for the presentation of a bill of exceptions. The term adjourned sine die this day. Notice of appeal was given and entered at the same time, but afterwards, on the 29th of the same month, another entry of appeal to the June term, A. D. 1889, of this court was made and followed by citation. On May 2d an appeal-bond was filed the clerk of the circuit court approving the same. A bill of exceptions was signed by the circuit judge, June 4, 1889, and filed in the clerk's office on the next day. The transcript of the record, now before us, was certified to by the clerk on the 7th of the same month, and it bears a formal certificate of the clerk, by his deputy, dated the following day, that the plaintiffs 'have paid' all the costs in the cause amounting to $143.51, and also the sum of $17, the cost of the transcript. The costs appeared to have been taxed by the clerk June 8, 1889. The transcript of the record was filed here on June 10, 1889.

On January 2, 1891, appellees served notice on appellants that they would move this court on the 14th of the same month to dismiss the appeal on the following grounds: (1) That the costs of appeal were not paid within the time required by law; (2) there is no evidence of authority from the appellants to M. L. Payne as their agent to sign the bond in appeal in said cause, and that there was no such authority in fact.

The act of February 12, 1835, (section 5, p. 447, Thomp. Dig.; section 3, p. 840, McClel. Dig.,) provides that no appeal or writ of error shall hereafter be granted to the original plaintiff in any suit, unless such plaintiff shall first pay all costs which may have accrued in and about the suit up to the time when the appeal or writ of error is prayed, and also enter into bond, with one or more securities, in a sum sufficient to cover all costs which may accrue in the prosecution of the appeal or writ of error, conditioned to pay the same if the judgment or decree of the court shall be affirmed.

Appellees, in support of their motion, rely upon the above transcript, certificate, and papers as to the payment of the costs, and upon the following affidavits: One of the clerk, D. A. Miller, made December 16, 1890, to the effect that the costs were paid to him on the 8th day of June, 1889, and one made March 19, 1891, by Raymond B. Bullock, who was a deputy of the clerk during the said month of June, stating that he does not remember and cannot say on what day the costs were paid; and, further, that Mr. Anderson, the attorney of appellants, 'said to affiant that he was ready to pay said costs more than once, but that no money for the same was shown or offered at any time to the affiant before the costs were taxed and paid;' and an affidavit of William P. Haisley, one of the appellees, made March 19, 1891, giving a history of the protracted litigation concerning the lot, stating his close observation of the proceedings as to an appeal, and his determination, in response to a sense of duty as to protecting his wife's property rights, to take advantage of every technicality and requirement of the law in perfecting the appeal, and that in pursuance of such purpose he watched the appeal proceedings 'from day to day, and at various times before the 60 days allowed for paying the costs in appeal he appeared in the clerk's office of said circuit court, and asked the clerk if the costs had been paid, and the reply was every time that they had not been paid; that after the expiration of the 60 days affiant again called at said clerk's office, and was again informed by him that the said costs were not paid, of which fact affiant at once informed his attorney; and that affiant is positive that said costs were not paid till after the said 60 days had expired.'

The appellant has filed an affidavit of Bullock, made March 5, 1891, stating he was such deputy-clerk during the first six months of the year 1889, and that he remembers the payment of the costs in this cause, and the circumstances connected therewith; that the cause having been long pending, and many steps having been taken, and numerous witnesses having been summoned by both parties at successive terms of the court, the making up of the cost-bill was a task somewhat complicated and difficult; that the plaintiff's attorney, R. L. Anderson, stood ready at all times after said judgment was rendered in said cause, to pay the costs in accordance with law, and requested that the said costs be taxed, and the amount ascertained, that the amount might be paid by plaintiffs; that the certificate of the payment of costs indorsed upon the appeal transcript was so indorsed thereon by affiant at the request of appellant's counsel, to serve as evidence of such payment; that, in fact, the payment of such costs was made prior to that date, and that, if the payment was made after the time limited by law, such delay was due to no default or negligence of appellants, who paid the same as soon as they were taxed by the clerk, and the amount ascertained.

Appellants have also filed an affidavit of Miller, the clerk, made March 11, 1891, stating that Bullock, his deputy, attended personally to the matter of the payment of the costs, and that his (Miller's) 'certificate' of December 16, 1890, supra, is and was based on facts and dates shown by the papers relating to the appeal, and not upon personal knowledge derived from personal attention to said costs.

This action being one at law, the statutory provisions set out above apply to it, though they do not apply to cases in equity. Smith v. Curtis, 19 Fla. 786. The only other cases construing this act are those of Bank v. McBride, 2 Fla. 7, and Gordon v. Camp, Id. 23, and Hall v Penny, 13 Fla. 593. In the first of these cases the only showing as to the payment of costs was the statement of counsel for appellant that he did not know that the costs had been paid, but thought it possible that, pursuant to a general understanding between the clerk and himself, the costs had been charged to the latter; and the reason for not giving bond was that the real plaintiff resided...