FAYE STOVALL, APPELLANT,
v.
WALLACE F. STOVALL, APPELLEE
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Faye Stovall appealed from a circuit court judgment overruling her demurrers and granting a temporary injunction against her and First Savings & Trust Company. The Florida Supreme Court dismissed the appeal for procedural defects: the return day was improperly set at thirty days (violating the statutory requirement of more than thirty days), and the non-appealing co-defendant, the corporation, was not made a party to the appeal.
The appeal is dismissed because the entry of appeal was defectively perfected: the return day was fixed at thirty days, which violates the statute requiring a return day of more than thirty days; moreover, the non-appealing co-defendant corporation was not made a party to the appeal, and the appearance of the other appellee does not cure these statutory violations.
“The statute requires that appeals 'shall be returnable to a day, either in term time or vacation more than thirty days and not more than ninety days from the date of the' filing of the entry of appeal.”
Establishes the statutory requirement for the return day in appeals, which the entry of appeal violated by setting a thirty-day return.
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Join FLexlaw to unlock all legal intelligenceWallace F. Stovall filed a complaint against Faye Stovall and First Savings & Trust Company of Tampa. The circuit court overruled Faye Stovall's gener…
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Per Curiam.
— The following is the entry of the appeal herein:
“Wallace F. Stovall,
“vs. “Faye Stovall and First Savings & Trust Company of Tampa, a corporation.
“'And now on this 3rd day of May, A. D. 1917, comes Faye Stovall, one of the defendants in the above entitled cause, and enters this her appeal to the Supreme Court of Florida, from the judgment entered by our said Circuit Court in said cause on the 30th day of April, 1917, overruling both the general and special demurrers filed by said defendant to the complanantes amended bill of complaint, and from the order and judgment of our said Circuit entered in said cause on said 30th day of April, 1917, granting to complainant a temporary injunction and restraining order as prayed in and by said amended bill of complaint, and makes said appeal returnable to a day in the January term of our said Supreme Court, A. D. 1917, not less than thirty nor more than ninety days after the date of the filing and recordation of this entry of appeal,, to-wit, the 3rd day of May, A. D. 1917.
“Dated this 3rd day of May, A. D. 1917.” The statute requires that appeals “shall be returnable to a day, either in term time or vacation more than thirty days and not more than ninety days from the date of the” filing of the entry of appeal. Sec. 1698, Gen. Stats., 1906, as amended by Chapter 5638, Acts of 1907; Sec. 1912, Gen. Stats., 1906, Compiled Laws, 1911; Parker v. Evening News Pub. Co., 54 Fla. 482, 44 South. Rep. 718; Spencer v. Travelers’ Ins. Co., 39 Fla. 677, 23 South. Rep. 442. The statute requires the entry of appeal in chancery cases to be filed with the clerk “and by such clerk shall be forthwith entered in the Chancery Order Book.” Sec. 1911, Gen. Stats., 1906, Compiled Laws, 1914.
A proper entry of appeal duly filed with the clerk gives the appellate court jurisdiction of the cause of action; and the due recordation of the entry of appeal in the Chancery Order Book gives the appellate court jurisdiction of the appellees.
Where an injunction is granted against two parties in a cause and only one of the parties appeals from the order, but the other party appears to have a substantial right or duty therein, the appeal will be dismissed. See Rawls v. Carlton, 56 Fla. 843, 48 South. Rep. 46; Nicohls & Johnson v. Frank, 59 Fla. 588, 52 South. Rep. 146; Henry Vogt Mach. Co. v. Milton Land & Investment Co., 74 Fla. 116, 76 South. Rep. 695.
In this case the appeal yms filed May 3, 1917, and is made “returnable to a day in the January Term * * * 1917, not less than thirty nor more than ninety days after the date of the filing and recordation of this entry of appeal, to-wit, the 3rd day of May, A. D. 1917.” The transcript of the record was filed here May 10, 1917.
If this appeal be construed to be returnable” not less than thirty nor more than ninety days after” May 3rd, 1917, then as no return is named, the return day may be thirty days from the filing; and a return day thirty days from the filing of the entry of appeal is a violation of the statute which requires that the entry of appeal “shall be returnable to a day “ * more than thirty days and not more than ninety days from the date of the” entry. The appellee, Wallace E. Stovall, has appeared in this court on the appeal, but this does not cure a violation of the statute in fixing the return day. See Griffith v. Henderson, 52 Fla. 507, 42 South. Rep. 705. The First Savings & Trust Company against whom together with Mrs. Faye Stovall the injunction order was issued, is not made a party to the appeal, and has not appeared in this court.
In Price v. Horton, filed here December 13, 1918, a proper return day was designated in the entry of appeal.
Appeal dismissed.
All concur.
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Citator
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Thursby v. Stewart, 103 Fla. 990 (Fla. 1931)…d entry of appeal having been filed and duly recorded as required by law (Sec. 4904 (2172) Compiled General Laws of Florida, 1927) it gave to the appellate court jurisdiction of the cause and also of the appellants and appellee. Stovall vs. Stovall, 77 Fla. 116, 80 So. 744. The defendant's, who voluntarily appealed, had the right to join their co-defendants, who were also affected by the order, as parties appellant. (Rabinowitz vs. Houk,.... Fla...., 129 So. 501, Hay vs. Isletts, 98 Fla. 1026, 125 So. 237…
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McJunkins v. Stevens, 88 Fla. 559 (Fla. 1925)…llant. See also Rutan v. Studebaker, 60 Fla. 184, 53 South. Rep. 9381; Stanley v. Jaffrey & Co., 13 Fla. 596; State ex rel. Andreu v. Canfield, 40 Fla. 36, 23 South. Rep. 591; Cornell v. Franklin, 40 Fla. 149, 23 South. Rep. 589; Stovall v. Stovall, 77 Fla. 116, 80 South. Rep. 744. An entry of appeal is used to transfer a cause in appeal to the Circuit Court; and if any entry of appeal taken by one of the parties is sufficient to give the Appellate Court jurisdiction of the cause, other parties who did no…
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Garner v. Garner, 83 Fla. 143 (Fla. 1922)…entry of the appeal filed in the Circuit Court was sufficient to give the Supreme Court jurisdiction of the subject matter of the Appeal. See Henry Vogt Mach. Co. v. Milton Land & Investment Co., 74 Fla. 116, 76 South. Rep. 695; Stovall v. Stovall, 77 Fla. 116, 80 South. Rep. 744. But because of the failure of the clerk to record the entry of appeal in the chancery order book as required by the statute as a substitute for a citation, the Supreme Court does not have jurisdiction of the appellee, unless th…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Parker v. The Evening News Publ'g Co., 54 Fla. 482 (Fla. 1907)
- Spencer v. The Travelers' Ins. Co., 39 Fla. 677 (Fla. 1897)
- Henry Vogt Mach. Co. v. Milton Land & Inv. Co., 74 Fla. 116 (Fla. 1917)
- Griffith v. Henderson, 52 Fla. 507 (Fla. 1906)
- Nichols & Johnson v. Frank, 59 Fla. 588 (Fla. 1910)
- Rawls v. Carlton, 56 Fla. 843 (Fla. 1908)