Seaboard Air Line R. Co. v. Holt

• Decision Date: 11 May 1955
• Citation: 80 So.2d 354
• Parties: SEABOARD AIR LINE RAILROAD COMPANY, Appellant, v. Henry M. HOLT, Appellee.
• Court: Florida Supreme Court

Page 354

80 So.2d 354

SEABOARD AIR LINE RAILROAD COMPANY, Appellant, v.Henry M. HOLT, Appellee.

Supreme Court of Florida, En Banc.

May 11, 1955.

Fowler, White, Gillen, Yancey & Humkey, Cody Fowler, Walter Humkey, Miami, and James E. Thompson, Tampa, for appellant.

Nichols, Gaither, Green, Frates & Beckham and Sam Daniels, Miami, for appellee.

HOBSON, Justice.

On October 29, 1954, we entered an order granting a motion to dismiss which was filed by counsel for appellee.In our per curiam order we stated: 'The motion to dismiss the appeal must be granted under the principles laid down in Brown v. Louisville Fire & Marine Ins. Co., Fla.1950, 47 So.2d 862, andLongo v. Alweiss, Fla.1953, 65 So.2d 556;see alsoGreen v. Fredericksen, 133 Fla. 429, 182 So. 785.'

The precise question then, as now, presented for our determination is whether the notice of appeal filed in this case by appellant substantially complies with the form of notice of appeal which follows Rule 39 of the Supreme Court Rules, 30 F.S.A.

The notice of appeal filed in this case reads as follows:

'Notice of Appeal

'Notice is hereby given that Seaboard Air Line Railroad Company, defendant, hereby appeals to the Supreme Court of Florida, from the final judgment entered in this action in favor of Henry M. Holt, on the 12th day of February, 1954.

'Fowler, White, Gillen,

Yancey & Humkey

By: /s/ Walter Humkey

Attorneys for Defendant

507 Biscayne Building

Miami, Florida

'I hereby certify that a copy of the above and foregoing Notice of Appeal was delivered to the offices of Nichols, Gaither, Green, Frates & Beckham, Attorneys for Plaintiff, 448 Pan American Bank Building, Miami, Florida, this 10th day of April, 1954.

'/s/ Anne S. Rudick'

It will be observed that the notice of appeal quoted from the transcript (p. 1559) does not carry a caption.However, the first exhibit in the transcript, namely, the complaint beginning on page 2, carries the caption in the following language:

'In The Circuit Court Of The Eleventh Judicial Circuit In And For Dade County, Florida.

At Law.

No. 28787

'Henry M. Holt, Plaintiff,

v.

Seaboard Airline Railroad Co., a corporation authorized to do business in Florida, Defendant.'

Complaint

The caption thereafter throughout the transcript, as is customary, is omitted.We may assume, in the absence of a showing to the contrary, that the original notice of appeal did, as each other paper filed in the cause, carry the caption in substantially the same form as the one appearing on the transcript copy of the complaint.

Tne notice of appeal in the instant case specifically states that the appeal is taken 'from the final judgment entered in this action in favor of Henry M. Holt * * *.'(Italics supplied.)It goes a step farther and gives the date of entry of 'the final judgment' as 'the 12th day of February, 1954.'The record discloses that no final judgment was entered on the 12th day of February, 1954.The transcript of record, however, does show in the copy of the final judgment and elsewhere that the jury rendered its verdict on February 12, 1954.

Appellee contends that the notice of appeal in this case does not substantially comply with the form prescribed by the Supreme Court Rule, supra, in that it (1) does not state what court is appealed from, (2) does not state the date of any final judgment in the record and refers only to the jury verdict, (3) it does not state where any final judgment is recorded, (4) it does not state what, if anything, this court is asked to do, and (5) does not state who is supposed to take notice of the purported entry of appeal.The caption certainly shows the court from which the appeal was taken, and likewise the caption as well as the body of the notice of appeal shows that Henry M. Holt, the plaintiff, is the person who is supposed to take notice of the entry of the appeal.Rabinowitz v. Houk, 100 Fla. 44, 129 So. 501.

With reference to the suggestion that the notice of appeal under consideration herein does not advise this court just what is expected of it, we need only say that the very purpose for which Florida's court of last resort was created refutes the imputation that said notice is fatally defective in this regard.This court was established for the purpose of providing an appellate court to review the orders, judgments or decrees of most of the inferior courts.The only reason any party to litigation could have in filing a notice of appeal would be to bring to this court for review a ruling of the trial court which said party considers to be erroneous.

The notice of appeal does not follow the prescribed form in that it fails correctly to state where the final judgment is recorded and does not state the correct date of the final judgment disclosed by this record.

Counsel for appellee contend further that since no valid notice of appeal was filed within the time fixed for the filing of such a notice, this court lacks jurisdiction over the subject matter.We agree that if the notice of appeal is so defective as to fail substantially to comply with the prescribed form, the question presented may become one of jurisdiction in which event the fact that appellee's motion to dismiss was not filed within the time allowed by the Supreme Court Rules would be of no moment.Moreover, the notice of appeal cannot be amended after the expiration of the sixty day period allowed for taking an appeal.

It is obvious from a reading of the suggested form following Supreme Court Rule 39 that it need not be complied with down to the dotting of every 'i' and the crossing of every 't'.The form set forth in 30 F.S.A. page 157, is preceded by the following: 'The Notice of Appeal may be substantially in the form following:' So it is we are squarely faced with the question whether the notice of appeal filed in this case is in substantial compliance with the prescribed form.

This court has ofttimes stated that the purpose of a notice of appeal is to disclose to the adverse party and the appellate court that an appeal from an appealable order, judgment or decree of the trial court is intended.We need only direct our attention to the failure of this notice of appeal to give the book and page number and the date of the final judgment reflected by the record.The record, however, does reflect only one appealable order, i. e., the final judgment, and the notice of appeal states unequivocally that the appeal is directed to 'the final judgment entered in this action in favor of Henry M. Holt * * *'.(Italics supplied.)The instant suit is a common law action and we have consistently held the only appealable order (with the exceptions noted in Sections 59.03,59.04and59.05, Florida Statutes, 1953) in such a suit is the final judgment.We are persuaded to the view that we should return to the position taken by this court that statutes giving a right of appeal should be liberally construed in the interest of manifest justice.Price v. Horton, 76 Fla. 537, 80 So. 305;Rabinowitz v. Houk, supra.We are also convinced that forms suggested by statute or rules of court requiring only substantial compliance should be held to have been complied with if the purpose of the statute or rule has been accomplished.Price v. Horton, supra.

Appellee lays great stress upon the case of Green v. Fredericksen, 133 Fla. 429, 182 So. 785, and asserts that it is directly in point with, and should be controlling of, the question presented herein.It will be noted that the cited case was an equity suit and was decided at a time (July 13, 1938) when interlocutory orders and decrees of a chancery court, as well as final decrees, were appealable.Under such circumstances the failure to give the correct date of entry, and the specific chancery order book number and page of recordation of the order or decree sought to be appealed could cause one's adversary to be confused, if not misled, as to the exact order or decree appellant intended to present to this court for review.The present suit is a common law action wherein as aforestated the only appealable order is 'the final judgment'.For the foregoing reasons we consider the Green case distinguishable.

In the criminal case of Bell v. State, 154 Fla. 505, 18 So.2d 361, the notice of appeal simply stated that the defendant'hereby takes and enters this his appeal to the Supreme Court of Florida * * *.'It was wholly insufficient to permit discovery with reasonable certainty of the order or judgment intended to be brought here for review.Patently there was no substantial compliance with the prescribed form in that case.In Longo v. Alweiss, Fla.1953, 65 So.2d 556,...