Mcjunkins v. Stevens
| Decision Date | 08 January 1925 |
| Citation | 102 So. 756,88 Fla. 559 |
| Parties | McJUNKINS v. STEVENS. |
| Court | Florida Supreme Court |
Action by John M. Stevens against A. L. McJunkins. From judgment for plaintiff, defendant appealed to the circuit court. After order dismissing appeal, defendant petitions for certiorari.
Order dismissing appeal quashed.
Appeal from joint judgment by less than all of parties against whom it is rendered will be dismissed, unless appeal taken is sufficient to transfer cause to appellate court and all other joint defendants appear in appellate court and join in appeal, or unless parties taking appeal have summons and severance or equivalent proceedings in order to eliminate parties, who could have joined but did not join in taking appeal, so as to permit those who take appeal to prosecute same without other parties, such other parties, as well as those taking appeal, being then bound by determination of appeal.
If appeal or writ of error recorded in books of trial court does not include all appellees or defendants in error, writ of error or appeal will be dismissed, unless such persons not duly made appellees or defendant in error appear in cause.
Syllabus by the Court
Motion to dismiss appeal for want of proper parties denied on appearance of absent parties in appellate court. Where an entry of appeal is sufficient to give to the appellate court jurisdiction of the cause, but not of all the parties thereto, and the absent parties appear in the appellate court, a pending motion to dismiss the appeal for want of proper parties will be denied.
Entry of appeal used to transfer cause to circuit court; on entry of appeal by one party, giving appellate court jurisdiction of cause, and appearance by other parties in such court, it has jurisdiction to determine appeal. An entry of appeal is used to transfer a cause on appeal to the circuit court; and if an entry of appeal taken by one of the parties is sufficient to give the appellate court jurisdiction of the cause, other parties who did not join in taking the appeal may appear and join in the appeal in the appellate court, and this will give the appellate court jurisdiction of the necessary parties so as to enable it to determine the appeal.
Appeal taken under full caption by one defendant from joint judgment, determined on merits if other defendant joins in appellate court; defendants not appealing from judgment, who appear and join in appeal by co-defendant in appellate court become parties thereto. The rule that the appellate court will not determine the merits of an appeal from a joint judgment unless all the parties against whom the joint judgment is rendered are before the appellate court, is not violated when an appeal under a full caption is taken by one of the defendants and the other defendant appears generally and joins in the appeal. In such a case the defendant who appears becomes a party to the appeal, making it unnecessary for the appealing defendant to have summons and severance.
Appellate court will not ordinarily bring in by process absent parties after time for taking appeal has expired, but may, in proper cases, admit them as parties on their request. Where the appellate court has acquired jurisdiction of the subject-matter of a cause, but some of the necessary or proper parties have not been made parties to the appeal or writ of error, and the time for taking the appeal or writ of error has expired, the court will not ordinarily permit its process to be used to bring in the absent parties, though should such parties appear in the cause in the appellate court and ask to be made parties without the issuance or service of process, the court may and in proper cases should admit them as parties in the cause, so that the subject-matter of the appeal may be completely determined.
Express or implied appearance of no avail on appeal or writ of error taken in violation of statute. Where the appeal or writ of error is taken in violation of the statute, an express or implied appearance is of no avail.
Appeal or writ of error or other authorized process duly taken gives court jurisdiction to determine particular cause. The Constitution or statute gives the court power to adjudicate litigated matters in classes of causes, and an appeal or writ of error or other authorized process duly taken gives a court jurisdiction to determine a particular cause.
In absence of constitutional prescription of method of acquiring appellate jurisdiction, Legislature may prescribe; appeal or writ of error not complying with statute as to return day will be dismissed; if jurisdiction not acquired by service of notice, appeal or writ of error will be dismissed unless appellee appears generally or waives notice. While the Constitution defines the appellate jurisdiction of the Supreme Court and of the circuit courts, it does not prescribe the means by which such appellate jurisdiction is acquired in particular cases, therefore the Legislature may prescribe such means; and if an appeal or writ of error is not taken in compliance with the statute as to the return day, the appeal or writ of error will be dismissed because taken in violation of the statute; and if jurisdiction of the appellee or defendant in error is not acquired by service of notice as required by the statute, the appeal or writ of error will be dismissed unless the appellee appears generally in the cause in the appellate court or duly waives notice.
When appeal or writ of error not including all necessary parties will not de dismissed, stated. An appeal or writ of error that does not include all the necessary parties appellee in the cause on appeal will be dismissed, unless the entry of appeal or writ of error is sufficient to transfer the cause and to give jurisdiction of the subject-matter to the appellate court, and those who were not duly made appellees or defendants in error in the entry of appeal or writ of error, appear in the cause in the appellate court, or unless in exceptional cases they may be brought in by due process.
Parties who should have been made appellants or plaintiffs in error may appear and participate; if parties, who should have been made appellants or plaintiffs in error, do not appear appellate proceedings will be dismissed, unless amendment can be made with summons and severance. Where an entry of appeal or writ of error is sufficient to transfer the cause to the appellate court, those who should have been, but were not made parties appellant or plaintiffs in error in the entry of appeal or writ of error, may appear and participate in appellate proceedings; and if such parties do not so appear the writ of error or appeal will be dismissed unless in exceptional cases an amendment of the appeal or writ of error can be made with summons and severance.
Appellate court may refuse to proceed, in absence of necessary or proper parties, or it may permit them to voluntarily appear or have them brought in; appellants declining to participate in appeal may in some cases be dismissed from cause. When an appellate court has acquired jurisdiction of a cause of action and of some of the parties, it may decline to proceed in the absence of other necessary or proper parties, or it may in some cases permit other necessary or proper parties to voluntarily appear or to be brought in by due process; and if some of the appellants decline to participate in an appeal they may in some cases be dismissed from the cause on appeal.
On appeal or writ of error in which all parties directly affected by judgment appealed from are not made parties court will decline to proceed. Where an appeal or writ of error is taken, and all the parties who are directly affected by the judgment, decree, or order appealed from are not duly made parties in the appeal or writ of error, the court will decline to proceed because the parties who should be, but are not, brought into court in the case will not be bound by the appellate judgment, decree, or order, and the court will not dispose of the matter by piecemeal.
Court having jurisdiction of appeal may permit absent parties to appeal and participate; appellate court having jurisdiction of cause may grant summons and severance as to parties appellant declining to come in. When by appeal or writ of error taken in due time by some of the parties who may appeal, and the court has jurisdiction of the cause of action, it may permit the absent parties to appear and participate in the appellate proceedings, in which case they will be bound by the judgment rendered. Or, having jurisdiction of the cause, the appellate court may grant a summons and severance as to parties appellant who decline to come in, in which event the parties who do appeal may proceed without the others, all being bound by the judgment.
Conditions under which appeal from joint judgment taken by less than all parties against whom rendered will not be dismissed, stated. An appeal from a joint judgment taken by less than all of the parties against whom the joint judgment is rendered will be dismissed unless the appeal taken is sufficient to transfer the cause to the appellate court and all the other joint defendants appear in the appellate court and join in the appeal, or unless the parties taking the appeal have summons and severance or equivalent proceedings in order to eliminate the parties who could have joined, but did not join, in taking the appeal so as to permit those who take the appeal to prosecute the same without the other parties, such other parties as well as those taking the appeal being then bound by the determination of the appeal.
Appeal or writ of error recorded in record books of trial court must properly include all appellees or defendants in error to give jurisdiction of their persons; if...
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... ... 116, 80 So. 744 ... An ... entry of appeal that is defective only as to parties may be ... cured by appearances in the cause. McJunkins v ... Stevens, 88 Fla. 559, 102 So. 756; Henry Vogt Mach ... Co. v. Milton Land & Inv. Co., 74 Fla. 116, 76 So. 695; ... Rabinowitz v. Houk, 100 ... ...
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...on the scope of rights to appeal, this Court in Austin v. Town of Oviedo, 92 So.2d 648 (Fla.1957), observed: In McJunkins v. Stevens, 88 Fla. 559, 102 So. 756, we announced a rule governing appellate practice which has been consistently followed by this Court. It was there held in substance......
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...480, 44 So. 710; Brooks v. Miami Bank & Trust Co., 115 Fla. 141, 155 So. 157; Ayers v. Daniels, 67 Fla. 482, 65 So. 660; McJunkins v. Stevens, 88 Fla. 559, 102 So. 756; Spencer v. Travelers' Ins. Co., 39 Fla. 677, So. 442; Arnold v. Boyce, 97 Fla. 484, 121 So. 472, 122 So. 117; Ates v. Lang......