HARRY AND HENRY WEISKOPH, PLAINTIFFS IN ERROR,
v.
ABBY J. DIBBLE, DEFENDANT IN ERROR
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The Florida Supreme Court denied a motion to dismiss a writ of error filed by defendants in the lower court. The court held that under Florida statute, a defendant obtaining a writ of error as a matter of right need not post a bond unless seeking a supersedeas, and that defects in the style of process (the scire facias) are subject to amendment rather than grounds for dismissal.
The court denied the motion to dismiss. No bond is required for a writ of error unless the defendant seeks it to operate as a supersedeas. The writ of error was properly issued in the name of the State of Florida. Although the scire facias was not issued in the correct style, this formal defect is subject to amendment under established common law principles and does not provide grounds for dismissal.
“Under our statute the writ of error issues on demand as a matter of right, and no bond is required when the defendant in the Circuit Court sues out the writ, unless he wishes it to operate as a supersedeas.”
Establishes that no bond is required for a writ of error unless the party seeks a supersedeas effect.
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Join FLexlaw to unlock all legal intelligencePlaintiffs in error (defendants in the trial court) sought a writ of error against the defendant in error (plaintiff in the trial court). The defendan…
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delivered the opinion of the court.
This is a motion to dismiss this writ of error. Among the gi'ounds urged in support of the motion is that there is no bond for costs given by the plaintiffs in error. The plaintiffs in error here were the defendants in the court below. At common law the defendant, upon a judgment being rendered against him in a civil case, was entitled to a writ of error as matter of right, and it operated as a supersedeas without bond. 2 Bac. Abridg’t, Error B.
Under our statute the writ of error issues on demand as a matter of right, and no bond is required when the defendant in the Circuit Court sues out the writ, unless he wishes it to operate as a supersedeas. Then a bond is required. Thomp. Dig., 447, Sec. 4. A want of a bond is, therefore, no ground for dismissal of the writ.
Another ground urged as -cause for granting the motion *23is that the writ of error does not run and is not issued in the name of the State of Florida. TJpon inspection of the record, we find that in fact the writ of error is issued in the name of the State of Florida. There is, therefore, nothing in this ground of the motion.
The last ground is that the scire facias ad audiendmn errores is not issued in the name of the State of Florida. The record discloses that this is the fact, and the question arises whether the writ of error for this reason should be dismissed. The Constitution, Section 2, Article 6, provides that the style of all process shall be, “ The State of Florida.” Proceedings in error are the prosecution of a new' suit or action, and questions as to the sufficiency of process arising in them are controlled to a great extent by the same rules as control in original actions. The citation in a writ of error performs the function of a summons ad respondendum in an ordinary action. The style of process is its title, and the title of process in civil eases has been the subject of amendment from a very early period in English history, (8 Co., 158; 1 Com., 579,) commencing with the statute of 14 Ed. III., Chap. 6, and embracing the various statutes of amendment mentioned in Thompsons’s Compilation of British Statutes in force in this State. (Thomp. Comp., pp. 13 to 40.) It may be conceived that this formal requirement being in ¿he Constitution is more binding upon the judiciary than if in an ordinary statute. Such, however, is not the case. We are as much bound by the one as the other, if the statute is within the powers of the Legislative Department of the government. It is equally the subject of amendment in one case as in the other. 2 Pick., 594; 32 N. H., 88 ; 15 N. H., 37; 7 Ark., 536; 15 Fla., 423. As covering the precise point here, see 10 Wis., 100; 35 Mo., 196.
Motion denied.
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The State of Fla. ex rel. John Andreu v. Heth Canfield, 40 Fla. 36 (Fla. 1898)…in Glasser, Kuder & Ottensoser v. Hackett, supra, it was held that one writ of error might be pleaded in abatement of another, which certainly would not be admissible if the writ of error be not in the nature of a new action. In Weiskoph v. Dibble, 18 Fla. 22, it was held that the writ was a new suit or [*68] action; that questions as to the sufficiency of process therein were controlled to a great extent by the rules prevailing in original actions; that the scire facias ad audiendum errores performed th…1 / 2
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Guar. Tr. & Safe Deposit Co. v. Buddington, 23 Fla. 514 (Fla. 1887)
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Alva A. Knight et. al. v. H. & H. Weiskopf, 21 Fla. 157 (Fla. 1885)
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