LOUIS FUNKE, PETITIONER,
v.
FEDERAL TRUST COMPANY, A CORPORATION, RESPONDENT
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This case addresses whether an appellee waived its right to enforce a mandatory statutory requirement that an appellant pay costs before appealing. The court held that the appellee's conduct in stipulating to multiple extensions of time and participating in the appellate process constituted a waiver of the right to demand dismissal for non-payment of costs.
The court held that while the requirement to prepay costs before appealing is mandatory and courts must dismiss appeals when the requirement is not met, the appellee waived its right to insist on dismissal through its conduct. By stipulating to multiple extensions and participating in the appellate process for nearly ten months before raising the cost issue, the appellee waived its right to demand dismissal.
“The provision of the above cited statute and rule for prepayment of such costs is mandatory, and where the statute is not complied with and timely motion is made the court is without discretion and must dismiss the appeal.”
Establishes that the cost prepayment requirement is mandatory and creates a no-discretion obligation to dismiss when properly invoked.
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Join FLexlaw to unlock all legal intelligenceIn a Civil Court of Record proceeding, judgment was rendered in favor of the defendant with $152 in costs assessed against the plaintiff. The plaintif…
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CARROLL, CHAS., Chief Judge.
This is an application for a writ of certiorari to review an order of the Circuit Court of Dade County denying a motion to dismiss an appeal.
The initial proceeding was in the Civil Court of Record where a judgment which was rendered in favor of a defendant included judgment for $152 costs against the plaintiff.
The plaintiff appealed to the Circuit Court, without first paying such costs. He did not assign as error the adjudging of the costs against him by the lower court.
The original defendant as the appellee in the Circuit Court moved to dismiss the appeal, for the failure of plaintiff to pay costs prior to the taking of such appeal as' required by Section 59.09, Fla.Stat., F.S.A., and Supreme Court Rule 29, 31 F.S.A. The Circuit Court denied the motion to dismiss the appeal, and allowed the appellant ten days within which to pay such costs.
The provision of the above cited statute and rule for prepayment of such costs is mandatory, and where the statute is not complied with and timely motion is made the court is without discretion and must dismiss the appeal. Walker v. City of Jacksonville, 154 Fla. 893, 19 So. 2d. 372. See also, MacNeill v. Marks, Fla.1952, 61 So. 2d 648, 649, and cases cited there.
However, the right of the appellee to a dismissal may be waived. The notice of appeal to the Circuit Court was filed on January 4, 1957. The motion to dismiss in that court was not filed until almost ten months later, on September 30, 1957. ' In the argument before this court it was brought out and conceded that during such interval the appellee had entered into stipulations for six or seven extensions of time for the filing of appellant’s brief in the Circuit Court. The brief of appellant was filed later, pursuant to such stipulations. Thereafter appellee obtained a stipulation extending the time in which appellee could file a brief. Only then did the appellee file his motion to dismiss the appeal.
That conduct on the part of the appellee in the Circuit Court amounted to a waiver of his right to insist on the dismissal of the appeal for nonpayment of the costs. Haile v. Mason Hotel & Investment Co., 71 Fla. 469, 71 So. 540; Smith v. Dillard, 84 Fla. 516, 94 So. 664; Berg v. New York Life Insurance Company, Fla.1955, 81 So. 2d 630. See also, MacNeill v. Marks, supra.
It follows that the petitioner has not shown that the Circuit Court failed to follow essential requirements of law in making the order denying appellee’s motion to dismiss the appeal in that court. Whereupon the petition for certiorari before this court is denied.
HORTON and PEARSON, JJ., concur.
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Forrest L. Bannister and Pattie R. Bannister v. Deane Loes Hart, Jr., 144 So. 2d 853 (Fla. 2d DCA 1962)…an appellant, as original plaintiff below, to satisfy or assign as error and supersede a cost judgment is a procedural defect that may be waived by an appellee and does not foreclose appellate jurisdiction. Funke v. Federal Trust Co., Fla.App.1958, 99 So. 2d 636; Simmons v. Gainesville Nehi Bottling Co., Fla.App.1960, 119 So. 2d 719;. Bredin v. Bredin, Fla.1959, 111 So. 2d 265. Thus, it appears that the first appeal in the instant case, which was dismissed on non-jurisdictional grounds, amounted to an aban…
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Hymie Pollack and Sara Pollack v. Pollock, 110 So. 2d 474 (Fla. 1st DCA 1959)…sed herein. PEARSON, TILLMAN, and CROSBY, HAROLD, Associate Judges, concur. . Gulf Appliance Distributors, Inc. v. Long, Fla.1951, 53 So. 2d 706. . In re Shambow’s Estate, 153 Fla. 762, 15 So. 2d 837. . Funke v. Federal Trust Co., Fla.App. 1958, 99 So. 2d 636. . 128 Fla. 684, 175 So. 734, 738. . Scarlett v. Frederick, 147 Fla. 407, 3 So. 2d 165, 167. . May v. State ex rel. Ervin, Fla.1957, 96 So. 2d 126. . 153 Fla. 899, 16 So. 2d 114. . § 45.19, F.S., 1941, F.S.A. .Ch. 29737, § 32, Laws of Florida,…
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Ogier v. John H. Swisher & Sons, Inc., 133 So. 2d 575 (Fla. 1st DCA 1961)…ill v. Marks et ux., Fla.1952, 61 Sc.2d 648; Walker-Skagseth Food Stores, Inc. v. National Surety Corp., 148 Fla. 161, 3 So. 2d 756; Callison v. Atlantic Coast Line Railroad Co., 82 Fla. 516, 90 So. 619. . Funke v. Federal Trust Co., Fla.App. 1958, 99 So. 2d 636; Walker v. City of Jacksonville, 154 Fla. 893, 19 So. 2d 372. . Bredin v. Bredin, Fla.1959, 111 So. 2d 265; Spector v. Ahrenholz, Fla.App.1958, 99 So. 2d 714; O’Connell v. Mason, Fla. 1957, 93 So. 2d 71. . Hale v. Martin, Fla.1954, 76 So. 2d 279;…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Haile v. Mason Hotel & Inv. Co., 71 Fla. 469 (Fla. 1916)
- Zelda Davies Walker v. City OF Jacksonville, 154 Fla. 893 (Fla. 1944)
- Berg v. NEW York Life Ins. Co., 81 So. 2d 630 (Fla. 1955)
- Smith v. Barney Dillard and D. H. Henley, 84 Fla. 516 (Fla. 1922)