Willey v. W.J. Hoggson Corp.

Decision Date30 May 1925
PartiesWILLEY et al. v. W. J. HOGGSON CORPORATION et al.
CourtFlorida Supreme Court

En Banc.

Suit by George F. Willey and others against the W. J. Hoggson Corporation and others. From interlocutory order sustaining general demurrer to bill of complaint, complainants appeal without obtaining supersedeas, and defendants move to dismiss and quash the appeal.

Motions denied.

Motion to dismiss appeal on ground that necessary parties are omitted from entry of appeal postponed to hearing of cause on merits.

Browne J., dissents.

Syllabus by the Court

SYLLABUS

Right to utilize appellate jurisdiction of Supreme Court is secured by Constitution, but right to supersedeas is regulated by statute; whether supersedeas is appropriate, and what is its effect if obtained, is to be determined by considering particular facts and controlling provisions in principles of law applicable. The right to utilize the appellate jurisdiction of the Supreme Court is in substance secured by the Constitution, but the right to a supersedeas in connection with appellate procedure is conferred and regulated by statute; and whether a supersedeas is appropriate, and what is its effect, if obtained, is to be determined upon a consideration of the particular facts of a case and of the controlling provisions and principles of law applicable in the premises.

Statute relating to supersedeas must be complied with to make it effective. Where the statute requires a bond or an order, or both a bond and an order, to make a supersedeas effective the statute must be complied with.

Usual function of supersedeas stated. The usual function of a supersedeas is in proper cases to stay further judicial proceedings in the case in the court below, or to restore or to preserve the status quo, or to stay the execution or enforcement of an order or a decree or judgment.

Supersedeas is not required by statute to preserve appellate jurisdiction and powers of Supreme Court in cause removed by appeal duly taken. The statute does not require a supersedeas to be obtained in order to preserve the appellate jurisdiction and powers of the Supreme Court in a cause that has been removed to the appellate court by an appeal duly taken in the case particularly where the appeal involves the whole merits of the cause.

Supersedeas is not essential to acquisition of, or to preservation of, Appellate jurisdiction; when jurisdiction of appellate court attaches, it is exclusive as to subject covered by appeal. A supersedeas is not essential to the acquisition of, or to preservation of, appellate jurisdiction. When the jurisdiction of the appellate court attaches, it is exclusive as to the subject covered by the appeal.

Where appeal is taken with or without supersedeas, so as to transfer cause to appellate court, trial court may not finally dispose of cause so as to interfere with power or authority of appellate court. The nature of a cause and of the order or decree appealed from might be such that, subject to the appeal, the trial court may properly take further judicial proceedings in the cause, or the order or decree appealed from may be executed or enforced, unless a supersedeas is duly obtained and made effective as an incident to the appeal taken; but where an appeal is duly taken, whether with or without a supersedeas, so as to transfer the cause to the appellate court, the trial court is without power to finally dispose of the cause by dismissal or otherwise so as to in form or effect interfere with the power and authority of the appellate court, under the Constitution, to make its jurisdiction and orders or decrees effective in the cause to which its organic appellate jurisdiction has attached by due course of appellate procedure.

When appellate court acquires jurisdiction of cause, no order of trial court can impair or interfere with power of appellate court to make its jurisdiction effective; order of trial court, dismissing bill of complaint after interlocutory appeal was duly taken, does not affect jurisdiction of appellate court. When the appellate court acquires jurisdiction of a cause, no order of the trial court can legally impair or interfere with the power of the appellate court to make its jurisdiction in the premises effective. An order of the trial court dismissing a bill of complaint, made after an interlocutory appeal was duly taken, does not affect the jurisdiction of the appellate court.

Appellate court will dismiss appeal taken solely from interlocutory order after final decree has been rendered in cause if no appeal is taken from final decree. Where an appeal is taken from an interlocutory order after a final decree has been rendered in the cause, and no appeal is taken from the final decree, the appellate court will dismiss the appeal taken solely from the interlocutory order.

Appellate court will not dismiss appeal taken from interlocutory order before final decree because of failure to appeal from final decree, unless such decree renders harmless or immaterial error, if any, in interlocutory order. Where an appeal is taken from an interlocutory order before a final decree is rendered in the case, the appellate court will not dismiss the appeal taken from the interlocutory order merely because the appellant did not take an appeal from the final decree after it was rendered, unless perhaps the final decree renders harmless or immaterial to the appellant the error, if any, in the interlocutory order appealed from.

If appeal from interlocutory order is duly taken before final decree, all proceedings in trial court subsequent to interlocutory appeal are subject to order or decree made on appeal from interlocutory order. Where the jurisdiction of the appellate court having attached by virtue of an appeal duly taken from an interlocutory order before final decree, all proceedings, including a final decree, in the trial court subsequent to the interlocutory appeal, are subject to the order or decree made on the appeal taken from the interlocutory order.

Supersedeas is not essential in appellate procedure. In this state a supersedeas is not an essential in appellate procedure. An appeal duly taken transfers jurisdiction of the cause to the appellate court without obtaining a supersedeas.

Proceedings of lower court after interlocutory appeal without supersedeas are subject to orders or decrees of appellate court; orders and decrees by lower court during pendency of interlocutory appeal do not deprive appellate court of jurisdiction. While the lower court may proceed further after an interlocutory appeal without supersedeas is duly taken, such proceedings are subject to the orders or decrees of the appellate court in the cause on the appeal; and orders and decrees made by the lower court in the cause during the pendency of the interlocutory appeal do not deprive the appellate court of its jurisdiction therein.

Supreme Court is required to entertain and decide motion to quash proceedings in error or by appeal on ground that such proceedings are taken for delay, although case has not been reached for final hearing on legal call of docket. Under sections 2920 and 3173, Revised General Statutes of 1920, the Supreme Court is authorized and required to entertain and decide motions to quash proceedings in error or by appeal, based upon the ground that such proceedings are taken merely for delay, notwithstanding the case has not been reached for final hearing upon regular call of the docket.

Purpose of statute requiring Supreme Court to entertain and decide motions to quash proceeding in error or by appeal, on ground that they are taken merely for delay, stated; Supreme Court will not investigate or decide doubtful or debatable questions of law or fact on motions to quash proceedings in error or by appeal. It is not the purpose of sections 2920 and 3173, Revised General Statutes of 1920, to require the court upon motions to quash, based upon the ground that the proceedings are taken merely for delay, to enter into an examination of or decide doubtful or debatable questions properly raised by the assignments of error, but its purpose is to enable the court to quash such proceedings where the assignments of error are so plainly without merit as to lead to the conclusion that the proceedings were taken merely for delay. The absence of error in the proceedings must be apparent upon a short and cursory examination of the record, requiring no investigation of authorities nor argument to show the untenableness of the assignments of error. If there are doubtful or debatable questions of law or fact, raised by the assignment of error, the court will not investigate or decide them upon motions of this character, but will hold the case for hearing in its regular order upon the docket.

In absence of appearance that assignments of error are palpably without merit or that appeal was taken against good faith and merely for delay, motion to quash appeal as being taken for delay should be denied. Where it does not appear, from such an examination of the transcript of the record as is required to be given on a motion made under the statute to quash the appeal, that the assignments of error are palpably without merit, or that the appeal was taken against good faith or merely for delay, the motion to quash the appeal should be denied.

Appeal from Circuit Court, St. Johns County; George Couper Gibbs, judge.

COUNSEL

David R. Dunham, of St. Augustine, and P. L. Gaskins, E. J. L'Engle, J. W. Shands, and O. O. McCollum, all of Jacksonville, for appellants.

Kay, Adams & Ragland, of Jacksonville, for appellees.

OPINION

WHITFIELD J.

This appeal is from an interlocutory order sustaining a general demurrer to the bill of complaint. No...

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