SAMUEL S. LOWE, APPELLANT,
v.
AMELIA E. DELANEY ET AL., APPELLEES
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The Florida Supreme Court denied appellant Samuel Lowe's petition to reinstate his dismissed appeal from a partition decree, holding that the appeal suffered from two fatal defects: it was made returnable to the wrong term of court and failed to properly include all necessary parties to the partition suit.
The petition for reinstatement must be denied because reinstatement would not cure the fatal defects in the appeal: the appeal was made returnable to the wrong term of court and lacked all necessary parties to the partition suit, both defects being incurable and requiring dismissal regardless of reinstatement.
“the use of such an abbreviation does not include anyone as a party to an appeal except such as are expressly and fully named in the appeal”
Establishes that 'et al.' cannot be used to include undesignated parties in an appeal; parties must be expressly named
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Join FLexlaw to unlock all legal intelligenceAppellant Lowe filed an appeal on November 21, 1906, from a decree in a partition suit, making it returnable to the June 1907 term, thereby skipping o…
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Per Curiam.
— This cause came on at this day upon a petition filed by the appellant praying for a re-instatement of the cause upon the dockets of this court — the same having been heretofore, on June 19th, 1907, dismissed here. The cause was heretofore dismissed upon two grounds, vis: (1) Because the appeal was entered on November 21st, 1906, and was made returnable to the June term, 1907, of this court, thereby jumping over the January term, 1907, to which under the law such appeal should have been made returnable and the transcript of record in the cause was not filed here until the first day of June, 1907.
(2). Because the appeal was from a decree in a suit for partition and yet only two of the parties to such suit were made parties to the appeal, vis: Samuel S. Lowe as sole party appellant, and Amelia E. DeLaney as party appellee. The entry of appeal attempts to include other unknown parties as appellees by the use of the abbreviation “et albut, as was held in the cases of state ex rel. Andreu v. Canfield, 40 Fla. 36, 23 South. Rep. 591, and Cornell v. Franklin, 40 Fla. 149, 23 South. Rep. 589, the use of such an abbreviation does not include anyone as a party to an appeal except such as are expressly and fully named in the appeal. It was held in the same cases that the amendment of an appeal by bringing in new parties appellant was as to such new parties an appeal entered for the first time at the date of such amendment, and that such an amendment bring ing in new parties appellant would not be permitted after the lapse of the time allowed by law for taking appeals. A re-instatement of the cause at this time could result in no benefit to the appellant petitioner for the reason that if the cause was re-instated he would stand before the court with his appeal in exactly the same predicament that it occupied before — vis: made returnable to the wrong term of this court, and with an incurable defect of necessary parties — both of which defects are fatal to the appeal and would necessitate again its dismissal. The petition for re-instatement must, therefore, of necessity be, and the same is, hereby denied at the cost of the petitioner. All concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Vincent v. Walker D. Hines, 79 Fla. 564 (Fla. 1920)…State, ex rel., Andreu v. Canfield, 40 Fla. 36, 23 South. Rep. 591; Continental Nat. Building & Loan [*571] Ass’n. v. Miller, 41 Fla. 418, 26 South. Rep. 725; National Bank of Lancaster v. Newheart, 41 Fla. 470, 27 South. Rep. 297; Lowe v. DeLaney, 54 Fla. 480, 44 South. Rep. 710. Assuming that M. L. Yincent alone may properly take an appeal in this case, a consideration of the merits require an affirmance of the decree. When a deed of conveyance of real estate is executed as required by the statute of…
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McJunkins v. Stevens, 88 Fla. 559 (Fla. 1925)…stment Co., 74 Fla. 116, 76 South. Rep. 695. In this case it is not sought to make J. H. MeJunkins a party appellant “by forcing him in as a party”; (40 Fla. 149); nor is an amendment sought for “bringing in new parties appellant” (Lowe v. Delaney, 54 Fla. 480, 44 South. Rep. 710), nor is the entry of the appeal fatally defective as in State ex rel. Andreu v. Canfield, 40 Fla. [*567] 36, 23 South. Rep. 591, or made returnable in violation of the statute as in DeBogory v. Hafleigh, 81 Fla. 631, 88 South. R…
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Buck v. All Parties Claiming Interest in the Prop. Involved as Heirs, 86 Fla. 86 (Fla. 1923)…Revised General Statutes. This court acquires no jurisdiction of a cause when the appeal therein is made more than six months after the ■entry of the final decree. See Hodges v. Moore 46 Fla. 598, 35 South. Rep. 13. In the case of Lowe v. DeLaney, 54 Fla. 480, 44 South. Rep. 710, this court held that an amendment of an appeal by bringing in new parties appellant was, as to such new parties, an appeal entered for the first time at the date ■of such amendment and such an amendment bringing in new parties a…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The State of Fla. ex rel. John Andreu v. Heth Canfield, 40 Fla. 36 (Fla. 1898)
- Cornell v. Franklin, 40 Fla. 149 (Fla. 1898)