Smith v. Dillard

Decision Date07 November 1922
Citation84 Fla. 516,94 So. 664
PartiesSMITH et al. v. DILLARD et al.
CourtFlorida Supreme Court

Error to Circuit Court, Lake County; C. O. Andrews, Judge.

Proceeding by Barney Dillard and another, late partners doing business as the Dillard-Henley Drug Company, against Victor R. Smith and others, copartners doing business as the Florida Schoolbook Depository. From the judgment rendered, defendants bring error. On motion to dismiss the writ.

Motion denied.

Syllabus by the Court

SYLLABUS

Writ of error by original plaintiff dismissed where he had not paid all costs previous to suing out. A writ of error will be dismissed on motion where plaintiff in error was the original plaintiff and had not, previous to suing out writ of error paid all costs which may have accrued in and about the suit in the court below.

Provision that original plaintiff must pay all accrued costs in suit up to time of writ of error for benefit of defendant in trial court, and may be waived. The provision of the statute that 'no writ of error shall be granted to the original plaintiff in any suit unless said plaintiff shall first pay all costs which may have accrued in and about the said suit up to the time when said writ of error shall be prayed' is for the benefit of the defendant in the trial court and may be waived.

COUNSEL

Butler & Boyer, of Jacksonville, for plaintiffs in error.

J. W Hunter, of Tavares, for defendants in error.

OPINION

WEST J.

This is a motion to dismiss the writ of error. The ground of the motion is that writ of error was illegally issued because the plaintiffs in error, who were the original plaintiffs, had not prior to the issuance of the writ of error paid all costs which had accrued in and about the said suit up to that time.

Upon authority of Callison v. A. C. L. R. R. Co., 82 Fla 516, 90 So. 619, construing section 2908 of the Revised General Statutes, a writ of error may be dismissed upon the ground stated in this motion.

The writ of error was issued and duly recorded in the minute book of the circuit court on the 24th day of July, 1922. It was returnable to this court September 20, 1922. The motion to dismiss was filed in this court on November 1, 1922. From a statement made by the clerk of the circuit court from the common-law progress docket attached to the motion to dismiss it appears that the accrued costs in the case were paid on September 6, 1922, after the writ of error was issued, but 55 days before the motion to dismiss was filed in this court.

In Haile v. Mason Hotel & Investment Co., 71 Fla. 469, 71 So. 540, upon a motion to dismiss, this court held:

'The latter provision [of section 2908, Rev. Gen. Stat.] is for the benefit of the defendant in the trial court, and it may be waived. In this case it was stated at the bar that the costs assessed when the writ of error was issued were paid. Subsequently other costs due in the cause were taxed. The defendant, having submitted the cause before making the
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5 cases
  • Ogier v. John H. Swisher & Sons, Inc., D-23
    • United States
    • Florida District Court of Appeals
    • October 24, 1961
    ...v. Goodno, 99 Fla. 517, 128 So. 825.7 Walker-Skagseth Food Stores, Inc., v. National Surety Corp., see footnote 3; Smith et al. v. Dillard et al., 84 Fla. 516, 94 So. 664; Haile v. Mason Hotel and Inv. Co., 71 Fla. 469, 71 So. ...
  • Funke v. Federal Trust Co.
    • United States
    • Florida District Court of Appeals
    • January 7, 1958
    ...on the dismissal of the appeal for nonpayment of the costs. Haile v. Mason Hotel & Investment Co., 71 Fla. 469, 71 So. 540; Smith v. Dillard, 84 Fla. 516, 94 So. 664; Berg v. New York Life Insurance Company, Fla.1955, 81 So.2d 630. See also, MacNeill v. Marks, It follows that the petitioner......
  • Simmons v. Gainesville Nehi Bottling Co., B-308
    • United States
    • Florida District Court of Appeals
    • April 5, 1960
    ...the said suit' as an indispensable prerequisite to appeal. Callison v. Atlantic Coast Line R. Co., 82 Fla. 516, 90 So. 619; Smith v. Dillard, 84 Fla. 516, 94 So. 664; Busch v. Goodno, 99 Fla. 517, 128 So. 825. We recognize that under the statute payment of costs was not a jurisdictional pre......
  • Busch v. Goodno
    • United States
    • Florida Supreme Court
    • June 6, 1930
    ... ... writ will be dismissed on motion made for that purpose ... Callison [99 Fla. 521] v. A. C. L. Ry. Co., ... 82 Fla. 516, 90 So. 619; Smith v. Dillard, 84 Fla ... 516, 94 So. 664 ... The ... plaintiffs ask the court to permit them to offset a claim ... which is in the form ... ...
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