R. D. BAKER AND THOMAS BAKER, PLAINTIFFS IN ERROR,
v.
A. L. CHATFIELD AND BYRON CHATFIELD, DEFENDANTS IN ERROR
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The Florida Supreme Court held that abandoning an appeal in a common law action does not bar a party from subsequently suing out a writ of error to the same judgment within two years, and that a bill of exceptions properly preserved can support review via writ of error even after an appeal was not perfected.
The abandonment of an appeal does not bar a subsequent writ of error within two years of the judgment. A bill of exceptions properly embodied can support review via writ of error, which remains an available remedy alongside appeals, and the motion to strike the bill of exceptions must be denied.
“The abandonment of an attempt to perfect an appeal in a common law action under our statutes, or in other words the failure or omission after having entered an appeal to give the required bond within the thirty days allowed by the statute, is not a bar to the suing out a writ of error to the same judgment after the expiration of the thirty days, and within two years from the date of the judgment.”
States the core holding that abandoning an appeal does not prevent pursuit of a writ of error within two years.
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Join FLexlaw to unlock all legal intelligencePlaintiffs in error R.D. Baker and Thomas Baker had entered an appeal in a common law action but failed to give the required bond within thirty days a…
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Mr. Justice Raney
delivered the opinion of the court:
The abandonment of an attempt to perfect an appeal in a common law action under our statutes, or in other words the failure or omission after having entered an appeal to give the required bond within the thirty days allowed by the statute, is not a bar to the suing out a writ of error to the same judgment after the expiration of the thirty days, and within two years from the date of the judgment. An appeal in the common law action is spoken of as a statutory substitute for a writ of error in the decisions of this court. Hall vs. Penny, 13 Fla., 593. Its ad’option as a means of reviewing the judgment of a lower court did not do away with the writ of error as an equivalent remedy ; the statute (act of February 10th, 1832,) upon which the remedy of such an appeal now rests, retains and regulates writs of error. The rulings or points which a bill of exceptions is necessary to preserve in order that they may be brought before an Appellate Court, could not be reviewed on a writ of error without a bill of exceptions reserving them, but when properly embodied in a bill of exceptions a writ of error was the remedy for getting them before the reviewing court, and this function of a writ of error has not been impaired by the institution of an appeal in common law actions. The motion to strike the bill of excpetions from the record must be denied, although it be true that when it was settled or filed the purpose of the dissatisfied party settling it was to perfect an appeal, and he had time to do.so.
If there are in the transcript any papers which cannot be considered by us, according to the practice in common law cases, unless they are properly a part of the bill of exceptions, we shall disregard them in making up our judgment on the merits of of the case.
The motion is denied.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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DaCosta v. Dibble, 45 Fla. 225 (Fla. 1903)…this action was taken in the court below, and in the face of this action appellant would have been precluded from doing so upon the ground that he had abandoned his appeal. Ellsworth v. Haile, 29 Fla. 256, 10 South. Rep. 612. In Baker v. Chatfield, 23 Fla. 62, text 63, 1 South. Rep. 779, it is said: “The abandonment of an attempt to perfect an appeal in a common law action under our statutes, or, in other words, the failure or omission after having entered an appeal to give the required bond within the t…1 / 2
Authorities Cited
- Hall v. Penny, 13 Fla. 593 (Fla. 1869)