Provident Sav. Bank & Trust Co. v. Devito

• Decision Date: 07 December 1929
• Parties: PROVIDENT SAVINGS BANK & TRUST CO. v. DEVITO et ux.
• Court: Florida Supreme Court

125 So. 235

98 Fla. 1076

PROVIDENT SAVINGS BANK & TRUST CO. v. DEVITO et ux.

Florida Supreme Court, Division B.

December 7, 1929

Suit between the Provident Savings Bank & Trust Company and Joseph Devito and wife. From the decree, the former appeals. Appeal dismissed.

Syllabus by the Court

SYLLABUS

Return day in chancery appeal is governed by statutes regulating writs of error (Comp. Gen. Laws 1927, §§ 4618, 4965). The return day in appeals in chancery is governed by the statutes regulating writs of error. The statute provides that the return day of a writ of error shall be 'more than thirty days and not more than ninety days from the date of the writ' or in chancery cases from the entry of the appeal.

Where appeal is void because returnable in violation of statute appellee's appearance cannot alone give appellate court jurisdiction of subject-matter; where appellate court does not acquire jurisdiction of subject-matter because appeal is returnable in violation of statute, appeal should be dismissed (Comp. Gen. Laws 1927, §§ 4618, 4965). Where an appeal to the Supreme Court is 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.

Statutes against dismissing appeal for want of proper parties or where error is not insisted on held not to dispense with requirements of due process or to court's appellate jurisdiction (Comp. Gen. Laws 1927, §§ 4635, 4636). The provisions of chapter 11890, Acts 1927, sections 4635, 4636 Compiled General Laws 1927, legally cannot, and properly interpreted do not, dispense with prescribed requirements that are essential to due process of law or to the jurisdiction of the court over the subject-matter and the parties in appellate proceedings.

Though Constitution gives Supreme Court appellate jurisdiction of chancery causes, method by which jurisdiction is acquired is statutory; adversary parties have right in due observance of statutory regulations of manner in which appeals may be made effective. Under the Constitution, the Supreme Court has 'appellate jurisdiction' of chancery causes, but the method of which appellate jurisdiction is acquired is prescribed by statute, and adversary parties have a right in the due observance of statutory regulations of the manner in which appeals may be made effective.

Filing in trial court of proper entry of appeal is essential to give appellate court jurisdiction of cause; recording of entry of appeal is necessary to give appellate court jurisdiction of appellees, unless appellees by waiver or appearance render recording immaterial. The filing in the trial court of a proper entry of appeal is essential to give the appellate court jurisdiction of the cause, and the due recording of the entry of appeal is essential to give the appellate court jurisdiction of the appellees, unless the appellees by waiver or voluntary appearance in the appellate court render therecording of the entry of appeal immaterial.

If filed entry of appeal is insufficient to give appellate court jurisdiction of cause, appellees' voluntary appearance will not give jurisdiction (Comp. Gen. Laws 1927, §§ 4618 4965). If the entry of appeal that is filed in the trial court is not legally sufficient to give the appellate court jurisdiction of the cause, as when the appeal is made returnable in violation of the statute, or where there is any other fatal defect in the entry of appeal, voluntary appearance of the appellees in the appellate court will not give that court jurisdiction of the cause, even if the parties are properly named in the entry of appeal that is filed in the trial court.

Where filed entry of appeal is sufficient to give appellate court jurisdiction of cause, but does not properly designate all necessary parties, appeal will be dismissed, unless missing parties subject themselves to jurisdiction (Comp. Gen. Laws 1927, §§ 4635, 4636). When the entry of appeal as filed is legally sufficient to give the appellate court jurisdiction of the cause, but the entry of appeal, though duly recorded does not properly designate all of the necessary parties, the appeal will be dismissed, unless all of the necessary parties who are not duly named in the recorded entry of appeal voluntarily appear in the cause in the appellate court, or by waiver or otherwise subject themselves to the jurisdiction of the appellate court in the cause.

Appeal returnable less than 30 days after filing entry of appeal will be dismissed (Comp. Gen. Laws 1927, §§ 4618, 4965). An appeal made returnable less than 30 days from the date of the filing of the entry of appeal is a violation of the statute, for which the appeal will be dismissed.

Appeal from Circuit Court, Hillsborough County; F. M. robles, judge.

COUNSEL

Frank P. Ingram and Edwin Brobston, both of Tampa, for appellant.

Joseph Miyares, of Tampa, for appellees.

Karl E. Whitaker, of Tampa, as amicus curiae.

OPINION

WHITFIELD P.J.

The entry of appeal herein was filed February 25, 1929, and made returnable 'on the 26th day of March A. D. 1929,' which latter date is 29 days after February 25, 1929, as there were only 28 days in February, 1929.

'The return day in appeals in chancery is governed by the statutes regulating writs of error. Sec. 1912, Gen. St. 1906; Parker v. Evening News Pub. Co., 54 Fa. 482, 44 So. 718; Ayers v. Daniels, 67 Fla. 482, 65 So. 660; Ates v. Langley, 61 Fla. 504, 54 So. 264; Spencer v. Travelers' Ins. Co., 39 Fla. 677, 23 So. 442; section 3173, Rev. Gen. Stats. 1920; section 4965, Compiled General Laws 1927.

'The statute provides that the return day of a writ of error shall be 'more than thirty days and not more than ninety days from the date of the writ,' or in chancery cases from the entry of the appeal. Section 1698, Gen. St. 1906, Compiled Laws 1914, section 2908, Rev. Gen. Stats. 1920; section 4618 Compiled Gen. Laws...