A. B. LONERGAN AND F. L. KENDRICK, APPELLANTS,
v.
J. O. PEEBLES AND ALICE L. PEEBLES, HUSBAND AND WIFE, THE BANKING, SAVINGS & TRUST COMPANY, A CORPORATION, AND J. H. SMITHWICK, APPELLEES
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In a foreclosure proceeding, appellants entered two appeals from the same decree and appellees moved to dismiss the second appeal. The Florida Supreme Court denied the motion, holding that the voluntary dismissal of the first appeal on its return date demonstrated intent to abandon it, and the motion to dismiss the second appeal constituted a general appearance that gave the court jurisdiction.
The motion to dismiss was denied. The court held that the voluntary dismissal of the first appeal on the return date of the second appeal manifested an intent to abandon the first appeal, and the technical rule against double appeals would not be applied. Additionally, the appellees' motion to dismiss, while claiming to be a special appearance, constituted a general appearance on the merits that conferred jurisdiction over them.
“under our practice there is no necessity to clog up and confuse the appellate proceedings in this court by double appeals, and we are, therefore, of opinion that when an appeal duly entered of record and effectual in every respect to transfer the cause to this court for review has been taken, it is irregular for the appellant during the term to which it is returnable to enter another without dismissing the first”
Establishes the general rule against double appeals from the same decree
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Join FLexlaw to unlock all legal intelligenceAppellants Lonergan and Kendrick filed a foreclosure proceeding and obtained a decree on March 10, 1917. They entered an appeal on March 17, 1917, ret…
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Whitfield, J.
In a foreclosure proceeding the complainants on June 24, 1917, entered an appeal from a decree rendered in the cause on March 10, 1917, returnable August 23, 1917. The transcript also contains an entry of appeal by the complainants taken March 17, 1917, from the decree of March 10, 1917, and returnable May 19, 1917. The appellees, J. H. Smithwick and the Banking, Savings & Trust Company, move to dismiss the appeal taken June 24, 1917, on the grounds that “it does not appear from the record here that the court has acquired jurisdiction of these appellees; and that said appeal was entered and filed while an appeal was pending from the same final decree and undisposed of.”
In DaCosta v. Dibble, 45 Fla. 225, 33 South. Rep. 466, it was held.that “under our practice there is no necessity to clog up and confuse the appellate proceedings in this court by double appeals, and we are, therefore, of opinion that when an appeal duly entered of record and effectual in every respect to transfer the cause to this court for review has been taken, it is irregular for the appellant during the term to which it is returnable to enter another without dismissing the first, and in the absence of such dismissal before the hearing of a motion to dismiss, the motion should be granted.” In that case the first appeal was not properly dismissed when the motion was made to dismiss the second appeal. In this case the records of this court show that the first appeal was properly dismissed on August 23, 1917. The motion to dismiss the second appeal was filed here October 8, 1917. By voluntarily dismissing the first appeal on the return day of the second appeal an intention to abandon the first appeal is made manifest and the technical rule announced in the DaCosta case will not be extended to the facts of this case. See Dorman v. McDonald, 47 Fla. 252, 36 South. Rep. 52.
The first ground of the motion to dismiss does not state that the entry of appeal was not in fact duly recorded; but reliance is made on the absence from the transcript of evidence that the entry of appeal was duly recorded. Even if no proper record of the entry of appeal was made to give this court jurisdiction of the appellees under the statute, the second ground of the motion is not confined to the question of the jurisdiction of the court over the person of the appellees but extends to the cause of action and amounts to a general appearance in the cause even though the motion states that the named appellees appeared specially for the purposes of this motion and for no other purpose. See Oppenheimer v. Guckenheimer, 34 Fla. 13, 15 South. Rep. 670; Ray v. Trice, 48 Fla. 297, 37 South. Rep. 582; Florida Cent. & P. R. Co. v. Peacock, 44 Fla. 176, 33 South. Rep. 217.
Motion to dismiss denied.
Browne, C. J., and Taylor, Ellis and West, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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McJunkins v. Stevens, 88 Fla. 559 (Fla. 1925)…ause, and to give jurisdiction of the subject-matter, to the Appellate Court, and those who were not duly made appellees or defendants in error in the entry of appeal or Writ of Error, appear in the cause in the Appellate Court (Lonergan v. Peebles, 74 Fla. 123, 76 South. Rep. 694), or unless in exceptional cases they may be brought in by due process; and where the entry of appeal or Writ of Error is sufficient to transfer the cause to the Appellate Court, those who should have been but were not made parti…
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Garner v. Garner, 83 Fla. 143 (Fla. 1922)…appellee but extends to the cause of action and amounts to a general appearance in the cause in this court, even though the motion states that the movants appear specially for the purpose of the motion, and for no other purpose. Lonergan v. Peebles, 74 Fla. 123, 76 South. Rep. 694. Where a party appears specially for the purpose of presenting the question of jurisdiction of the court over his person, he must restrict his motion to the ground of such jurisdiction and must not include therein some other gro…
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Maude E. Gaskins v. Mack, 91 Fla. 284 (Fla. 1926)…e appeal is allowable from the same decree within six months after "the entry of the order or decree from which the appeal is taken where there has been an abandonment or dismissal of the first appeal before the second is taken. Lonergan v. Peebles, 74 Fla. 123, 76 South. Rep. 694; DaCosta v. Dibble, 45 Fla. 225, 33 South. Rep. 466; Dorman v. McDonald, 47 Fla. 252, 36 South. Rep. 52; 3 C. J. 351. It is the rule that statutes giving and regulating the right of appeal are recognized as remedial in their nat…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Oppenheimer v. Guckenheimer, 34 Fla. 13 (Fla. 1894)
- Ray v. Trice, 48 Fla. 297 (Fla. 1904)
- DaCosta v. Dibble, 45 Fla. 225 (Fla. 1903)
- Dorman v. McDonald, 47 Fla. 252 (Fla. 1904)
- Fla. Cent. & Peninsular Railrod Co. v. Peacock, 44 Fla. 176 (Fla. 1902)