JOSEPH S. PRICE, APPELLANT,
v.
N. B. BROWARD, SHERIFF, ETC., APPELLEE
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The Florida Supreme Court dismissed an appeal due to procedural defects in how the appeal was entered and made returnable, despite the lack of objection from the appellee. The court emphasized that appeals must strictly adhere to statutory requirements for proper notice and timeliness.
Yes, the appeal is dismissed because it was entered in violation of statutory requirements for appeal entry and return, rendering it fundamentally defective.
“The appeal having been taken within thirty days of a succeeding term of this court, should have been entered to a day within said term, so as to allow proper time for service of citation, but the appeal entered here, passing over as it does in express terms the next succeeding term and going to the following term, was forbidden by statute (McClellan’s Digest, p. 841, section 10), and on this account is so irregular and defective ..as to cause a dismissal of the case here.”
This quote explains the specific statutory violation that led to the dismissal.
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Join FLexlaw to unlock all legal intelligenceThe appellant, as the plaintiff in a replevin suit, appealed a judgment against him. The appeal was entered in open court, but the transcript was file…
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Mabry, J.:
This is a proceeding in which the appellant entered an appeal in open court from a judgment rendered against him as plaintiff below in a replevin suit against appellee as defendant. The appeal was entered before the Revised Statutes went into effect, and within thirty days of the commencement of the next succeeding term of this court, and was made returnable not to a day in said term, but to the next succeeding term. The transcript of the record was not filed in this court until more than seven months after the return day as 'fixed in the appeal, but no objection has been made on this account; and, in fact, the appellee has made no appearance in this court in any manner whatever. The appeal having been taken within thirty days of a succeeding term of this court, should have been entered to a day within said term, so as to allow proper time for service of citation, but the appeal entered here, passing over as it does in express terms the next succeeding term and going to the following term, was forbidden by statute (McClellan’s Digest, p. 841, section 10), and on this account is so irregular and defective ..as to cause a dismissal of the case here. An appeal entered in open court as required by the statute-is-notice t-o the appellee, but one entered in violation of the statute should not be considered as such notice. In the absence of any waiver of the defective entry of' appeal in this case it should be dismissed, and it is so-ordered.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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McJunkins v. Stevens, 88 Fla. 559 (Fla. 1925)…2; Simmons v. State, 40 Fla. 467, 25 South. [*569] Rep. 62; Payne v. Roche, 41 Fla. 478, 27 South. Rep. 29; Fleming v. Fleming, 40 Fla. 154, 23 South. Rep. 571; Savannah, F. & W. Ry. Co. v. Justice, 41 Fla. 508, 26 South. Rep. 704; Price v. Broward, 39 Fla. 194, 22 South. Rep. 650; Player v. Bokenfehr, 40 Fla. 415, 34 South. Rep. 472. The Constitution or statute gives a Court power to adjudicate litigated matters in classes of causes, and an appeal or Writ of Error or other authorized process duly taken g…
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Savannah v. Justice, 41 Fla. 508 (Fla. 1899)…this court jurisdiction of said cause, the [*509] said cause is, therefore, stricken from the dockets of this court and dismissed. Browning v. State, 40 Fla. 466, 25 South. Rep. 62; Simmons v. State, 40 Fla. 467, 25 South. Rep. 62; Price v. Broward, 39 Fla. 194, 22 South. Rep. 650; Fleming v. Fleming, 40 Fla. 154, 23 South. Rep. 571.…