W. M. REDMOND, APPELLANT,
v.
W. M. DONALDSON & CO., APPELLEES
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The Florida Supreme Court affirmed a judgment against the appellant, deeming the appeal frivolous and awarding damages. The court held that procedural objections not raised in the trial court cannot be raised for the first time on appeal.
No, such an objection must be raised in the trial court before a general appearance, and cannot be raised primarily in the appellate court.
“It has been directly held by this court, and properly so, that if a defendant can take any advantage of the failure of the clerk to transcribe into the memorandum book the praecipe for issuing the original summons, it must be done in the Circuit Court, and at least before a general appearance.”
Establishes the rule that procedural objections must be raised in the trial court.
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Join FLexlaw to unlock all legal intelligenceAppellees sued appellant in assumpsit and obtained a judgment. Appellant appealed, assigning as error that the clerk issued a summons without first re…
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[*168] Mabry, C. J.:
The appellees, W.
M. Donaldson and W.
H. Donadlson, partners doing business in the firm name of W.
M. Donaldson & Co., sued the appellant, W.
M. Redmond, in an action of assumpsit and obtained judgment.
The record shows that a praecipe for a summons ad respondendum was filed, the issuance and service of the summons, the filing of a plea by the defendant, a trial and judgment in favor of plaintiffs, and the entry of an appeal from the judgment by the defendant. The praecipe and summons are in due form, and no question was raised in reference to either of them in the trial court. The only assignment of error on the record in this court, is, that the clerk issued the summons ad respondendum without previously recording the praecipe. It has been directly held by this court, and properly so, that if a defendant can take any advantage of the failure of the clerk to transcribe into the memorandum book the praecipe for issuing the original summons, it must be done in the Circuit Court, and at least before a general appearance. Such an objection can not be raised primarily in the appellate court. Jacksonville & Atlantic R. R. Co. vs. Woodworth, 26 Fla. 368, 8 South.
177. We are forced to the conclusion that this is a frivolous appeal, sued out merely for delay; and in accordance with the practice of this court (Williams vs. La Penotiere, 25 Fla. 473, 6 South. 167) we allow ten per cent. damages for taking such appeal.
The judgment appealed from will be affirmed, with the allowance of tent per cent, damages as for a frivolous appeal. Judgment to be entered accordingly.
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Georgia v. Holland and James J. Holland, 43 Fla. 85 (Fla. 1901)…he court will not investigate or decide them upon motion<; of this character, but will hold the case for hear in o- in its regular order upon the docket. Dzialynski v. Bank of Jacksonville, 23 Fla. 346, [*93] 2 South. Rep. 696; Redmpnd v. Donaldson, 35 Fla. 167, 17 South. Rep. 70; Vaught v. Green, 51 Ark. 378, 11 S. W. Rep. 587. Upon motions of this character the party moving will not be heard either orally or by brief, for the reason that the assignments of error must on an examination of the record be so…
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In the Matter of: The Estate of William H. Benedict, 117 Fla. 472 (Fla. 1934)…urt against good faith or merely for delay. See Richards v. Nall, 8 Fla. 369 (1859); Broughton v. Crosby, 9 Fla. 254 (1860); Stafford v. Anders, 10 Fla. 211 (1860); Williams v. La Penotiere, 25 Fla. 473, 6 Sou. Rep. 167 (1889); Redmond v. Donaldson, 35 Fla. 167, 17 Sou. Rep. 70 (1895); Dzialynski v. Bank of Jacksonville, 23 Fla. 346, 2 Sou. Rep. 696. It is not to be gainsaid that in many cases the delay and vexation of frivolous' appeals and writs of error directly results in the infliction of special dam…
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Nautilus Operating Co. v. Donald S. Lavigne, Inc., 109 So. 2d 775 (Fla. 3d DCA 1959)…case. . Section 59.33, Florida Statutes 1957, F.S.A. . Stafford v. Anders, 1860, 10 Fla. 211; Dzialynski v. Bank of Jacksonville, 1887, 23 Fla. 346, 2 So. 696; Long v. Herrick, 1891, 28 Fla. 755, 10 So. 17; Redmond v. W. M. Donaldson & Co., 1895, 35 Fla. 167, 17 So. 70; In re Benedict’s Estate 1934, 117 Fla. 472, 158 So. 276; Gill v. Smith, 1935, 119 Fla. 293, 161 So. 282. .Florida Statutes 1957, Vol. 3, page 3219, 3220, 31 F.S.A.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Williams v. LaPenotiere, 25 Fla. 473 (Fla. 1889)
- The Jacksonville & Atl. R.R. Co. v. Woodworth, 26 Fla. 368 (Fla. 1890)