CHARLES F. DORMAN, APPELLANT,

v.

L. B. MCDONALD, J. B. MCDONALD AND A. W. MCDONALD, PARTNERS AS THE MCDONALD LUMBER COMPANY, APPELLEES

Maxwell, J.-

— On the 15th day of March, 1902, an appeal was entered in this cause, and on the 4th day of April following, a so-called dismissal of that appeal was filed in the office of the clerk of the Circuit Court, and no further steps were taken to prosecute the appeal. On the 7th of April a second appeal was entered, and this was duly prosecuted. Briefs for the respective parties were filed in July and August, 1902, and the case set for oral argument in January, 1904, and at request of counsel re-set for February 9th, 1904. On that day a motion was made by appellees that the first appeal be dismissed because no transcript of the record had been filed thereunder, and that the second appeal be dismissed because at the time of its entry the prior appeal was pending.

As held in the case of DaCosta v. Dibble, 45 Fla. 225, 33 South. Rep. 466, an attempt to dismiss an appeal in the office of the clerk of the lower court is ineffectual, and in that case, upon motion duly made, a second appeal entered while a former appeal was pending was held to be irregular and was dismissed. This is a rather technical rule to be applied in cases where, as here, before entering the second appeal unmistakable evidence has been given of an intention to abandon the first by filing a dismissal of it and taking no further steps to prosecute it, and we are not disposed in such cases to give the rule any wider application than is required by an adhérence to the precedent established by that case.

In that case the motion to dismiss was made before the case was submitted upon briefs by the parties. The right to have an appeal dismissed may be lost by undue delay or laches in exercising it. Lake v. Hancock, 29 Fla. 336, 11 South. Rep. 97; Anderson v. Webster, 30 Fla. 220, 11 South. Rep. 546; 3 Cyc. 194. In this case the motion was made eighteen months after the briefs upon the merits had been filed by both parties, and after the case had been reached for final disposition and was called for oral argument. The first appeal will be dismissed for failure to file transcript, and the motion as to the second appeal will be denied.

We pass to a consideration of the merits of the appeal. The bill of complaint filed by the appellant alleged a verbal contract made on December 1st, 1898, with the defendants by which they were to furnish him ten thousand feet of boards per day, at $4.00 per thousand feet, as long as they should operate their saw mill at Paradise, Florida, which they assured him would be at least eight years, and that it was still operated by them when the bill was filed; that complainant thereupon erected a mill to put the lumber to be so delivered in marketable condition; that after the erection of his mill the defendants delivered him part of the lumber as stipulated until about June 15th, 1899, and after that failed to furnish the amount specified in the contract, whereby the business of complainant was crippled and he became indebted to the defendants in the sum of $759.87, and later from the same cause in the sum of $1078, for each of which indebtednesses he gave defendants a mortgage on the machinery and fixtures of his mill; that he has paid both of such mortgage debts in full, but the defendants still hold each of the amounts against him and demand payment therefor; that on March 1st, 1900, the defendants refused longer to supply him with lumber for $4.00 per thousand, and demanded $6.00 per thousand, which deprived complainant of any continuance on his part of his said contract, and entailed a loss to his business of $35 per day; that defendants fail and refuse to adjust their account with complainant or to continue their contract with him. The bill prayed that the defendants be required to fulfill the terms of their contract; that an account be taken of all debts, claims and differences between the parties, and that the defendants be required to pay complainant all sums found to be due him, and be required to deliver to him the mortgage held by them'; that they be enjoined from proceeding at law for the collection of any claims against the complainant or for the foreclosure of the said mortgage; that a receiver for the defendants’ property should be appointed if it became necessary, and for general relief.

A decree pro confesso was entered against the defendants which, upon their application, was set aside and leave given to file an answer. It is from this order that the present appeal was entered.

A complainant after the entry of decree pro confesso is entitled only to such final decree as is authorized by the allegations of his bill. If, therefore, the bill be without equity it entitles him to no relief, and if the decree pro confesso be set aside, he can not on appeal reverse this order, but his bill should be dismissed without prejudice. Marks v. Baker, 20 Fla. 920; Patton v. Crumpler, 29 Fla. 573, 11 South. Rep. 225.

What are the equities of this bill? It first prays specific performance of the contract, but the general rule is that a contract for the sale of chattels is not the subject of a bill for specific performance (3 Pomeroy’s Eq. Jur. sec. 1402, p. 2156; Yulee v. Canova, 11 Fla. 9), and the bill alleges nothing to take the case out of the general rule. It next prays for an accounting, but its averment that certain indebtedness existed, and was secured by mortgage and has been paid, but that it was held as a debt charged in an account on the defendants’ books against him, does not show a course of dealing or state of affairs calling for an accounting in equity, nor does it challenge the correctness of a single item of the account on the defendants’ books, except the one covered by the mortgage. It states no case for an accounting unless as incident to or necessary to determine the propriety of the prayer that the mortgage be surrendered. Unless the latter feature furnishes ground for equitable intervention, then the bill shows none.

The mortgage in question is upon mill machinery and presents no question of cloud upon title to realty. The ground of the right to its stirrender asserted in the bill is that the debt has been paid. Payment is a defense which may be interposed to any suit based upon the mortgage. There is no showing that from the nature of the proof of payment, or from lapse of .time, this defense may fail if relief be not now granted, nor is there any allegation or intimation of intention on the part of the defendants to harrass the complainant with many or vexatious suits upon the mortgage. No ground for the intervention of equity is shown, and the bill should not be entertained. Butler v. Durham, 2 Ga. 413; Mercantile Bank v. Pettigrew, 74 N. C. 326; Garrett v. Mississippi & Alabama Railroad Company, 1 Freem. Ch. Rep. 70; 24 Am. & Eng. Ency. Law, 634-635.

The case is remanded with directions that the bill be dismissed without prejudice.

Carter, P. J., and Cockrele, J., concur..

Tayror, C. J., and Sitacicreeord and Hocker, JJ., concur in the opinion.