ADELAIDE S. DEBOGORY AND P. DEBOGORY, HER HUSBAND, APPELLANTS,
v.
NORMAN B. HAFLEIGH AND BERTHA HAFLEIGH, HIS WIFE, APPELLEES
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The Florida Supreme Court dismissed an appeal from a chancery decree because the appeal was made returnable in violation of statutory requirements governing the timing of return days. The court held that when an appeal violates the statutory requirement that the return day be more than thirty days from entry of the appeal, the appeal is void and must be dismissed sua sponte regardless of the appellee's appearance.
An appeal made returnable in violation of the statute providing that the return day must be more than thirty days and not more than ninety days from the date of entry of the appeal is void and confers no jurisdiction on the Supreme Court. Such an appeal must be dismissed sua sponte by the court, and the appearance of the appellee cannot cure the jurisdictional defect.
“Where an appeal to the Supreme Court made returnable in violation of the statute so as to be void and to confer no jurisdiction of the subject-matter upon the Supreme Court, the appearance of the appellee cannot of itself give the court' jurisdiction of the subject-matter of the appeal, and such an appeal so taken should be dismissed by the court sua sponte.”
Establishes the core holding that jurisdictional defects in the timing of appeal return days cannot be cured by the appellee's appearance
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Join FLexlaw to unlock all legal intelligenceThe defendants Adelaide S. DeBogory and P. DeBogory appealed from a final decree in chancery entered July 27, 1920, in favor of complainants Norman B.…
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Whitfield, J.
The entry of appeal herein is as follows :
“Norman B. Hafleigh and Bertha Hafleigh, His Wife, Complainants, v. Adelaide S. DeBogory, and P. DeBogory, Her Husband, Defendants,
Notice of Appeal.
“The defendants, Adelaide S. DeBogory and P. De-Bogory, her husband, by D. J. Hefferman, their solicitor, enter their appeal to the Supreme Court of the State of Florida from a final decree made on the 27th day of July, A. D. 1920, for the complainants; Norman B. Hafleigh and Bertha Hafleigh, his wife, and against the defendants, Adelaide S. DeBogory and P. DeBogory, her husband, which final, decree is recorded in Chancery Order Book 10, page 221, in the office of the Clerk of the Circuit Court, Eleventh Judicial Circuit of Florida, in and for Dade County, in Chancery.
“This appeal is made returnable on the 10th day of January, A. D. 1921, and the Clerk of the Circuit Court aforesaid is hereby directed to forthwith file this notice of appeal and record same in the Chancery Order Book, as required by law.
“Dated at Miami, Florida, this 14th day of December, A. D. 1920.”
The return day in appeals in chancery is governed by the statutes regulating writs of error. Sec. 1912, Gen. Stats. 1906; Parker v. Evening News Pub. Co., 54 Fla. 482, 44 South. Rep. 718; Ayers v. Daniels, 67 Fla. 482, 65 South. Rep. 660; Ates v. Langley, 61 Fla. 504, 54 South. Rep. 264; Spencer v. Travelers’ Ins. Co., 39 Fla. 677, 23 South. Rep. 442; Sec. 3173, Rev. Gen. Stats. 1920.
The statute provides that the return day of a writ of error shall be “more than thirty days and not more than ninety days from the date of the writ,” or in chancery cases from the entry of the appeal. Section 1698, Gen. Stats. 1906, Compiled Laws, 1914, 2908 Rev. Gen. Stats. 1920.
Where an appeal to the Supreme Court made returnable in violation of the statute so as to be void and to confer no jurisdiction of the subject-matter upon the Supreme Court, the appearance of the appellee cannot of itself give the court' jurisdiction of the subject-matter of the appeal, and such an appeal so taken should be dismissed by the court sua sponte. Griffith v. Henderson, 52 Fla. 507, 42 South. Rep. 705; Anderson v. State, 73 Fla. 86, 74 South. Rep. 6.
The appeal in this case was entered December 14, 1920, and made returnable January 10, 1921. The return day is less than thirty days from the date of the entry of the appeal, which is a violation of the statute, and for which the appeal must be, and is hereby, dismissed.
Browne, C. J., and Taylor, Ellis and West, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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S. Atl. S.S. Co. of Del. v. Sumpter Tutson and Katie May Tutson, 139 Fla. 405 (Fla. 1939)…appellate jurisdiction as to one or to both the cause and the parties. Provident Savings Bank & Tr. Co. v. Devito, 98 Fla. 1076, 125 So. 235; Dupree v. Elleman, and Weaver-Loughridge Lumber Co. v. Coleman, filed July 21, 1939; DeBogory v. Hafleigh, 81 Fla. 631, 88 So. 470; Wiley v. Hoggson, 89 Fla. 446, 105 So. 126; Sumner Lumber Co. v. Mills, 64 Fla. 513, 60 So. 757. Amendments of an entry of appeal as to the return day thereof cannot be made if the time for taking the appeal has expired, at least unles…
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McJunkins v. Stevens, 88 Fla. 559 (Fla. 1925)…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. Rep. 470; Ayers v. Daniels, 67 Fla. 482, 65 South. Rep. 660; Read v. Cromer, 86 Fla. 390, 98 South. Rep. 329; but the entry of appeal is properly returnable and contains in its caption as appellants the two defendants in the trial Court a…1 / 2
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Harrison Reed and Catherine Harriet Reed v. Mendel Cromer, 86 Fla. 390 (Fla. 1923)…trange doctrine that would permit parties litigant to waive a statutory requirement, which the court itself would have no authority to change or modify by its order. The latest decision of this court on this subject is that of DeBogory v. Hafleigh, 81 Fla. 631, 88 South. Rep. 470, where we said: “Where an appeal to the Supreme- Court is made returnable in violation of the statute so as to be void and to confer no jurisdiction of the subject-matter upon the Supreme Court, the appearance of the appellee can…
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)
- Griffith v. Henderson, 52 Fla. 507 (Fla. 1906)
- Anderson v. State, 73 Fla. 86 (Fla. 1917)
- Alda Ayers v. Linton Daniels, 67 Fla. 482 (Fla. 1914)
- Ates v. Langley, 61 Fla. 504 (Fla. 1911)