LLOYD SPECTOR AND ESTELLE J. SPECTOR, HIS WIFE, APPELLANTS,
v.
L. T. AHRENHOLZ, INDIVIDUALLY AS A TRUSTEE, AND INDIVIDUALLY, AND MARY AHRENHOLZ, HIS WIFE, AND BORIS SPASEFF, APPELLEES
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The court dismissed an appeal for failure of the appellants to pay adjudicated costs before filing their notice of appeal, as required by Florida statute. The court held that counsel is charged with knowledge of the case record and cannot claim ignorance of an entered, filed, and recorded cost judgment to excuse non-compliance with the statutory requirement.
The appeal must be dismissed. The court has no discretion in the matter and must grant the motion to dismiss. Appellants' lack of actual knowledge of the cost judgment cannot remove the effect of the statute requiring payment of such costs, because counsel is charged with knowledge of the record status of the case at the time of filing the appeal.
“counsel is charged with knowledge as to the record status of the case at the time of the filing of the appeal”
Establishes that counsel cannot claim ignorance of entered cost judgments that are part of the public record
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Join FLexlaw to unlock all legal intelligenceThe Circuit Court of Dade County rendered a summary final decree on October 24, 1957. Approximately one month later, after a hearing on defendants' mo…
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PER CURIAM.
Appellees moved to dismiss the appeal for failure of appellants, who were the plaintiffs below, to pay the adjudicated costs prior to the filing of the appeal, as required by Section 59.09, Fla.Stat., F.S.A. The notice of appeal was filed December 4, 1957, directed to a summary final decree of the Circuit Court of Dade County, rendered October 24, 1957. Approximately a month after the date of the final decree a hearing was had on defendants’ motion for a judgment for costs, and after holding the matter under advisement for several days, the court entered the judgment for costs on November 26, 1957, which was filed on November 27, and recorded on November 29. The period for appeal from the October 24 decree was not to expire until December 23. However, the notice of appeal was filed on December 4 by the original plaintiffs, without first paying the cost judgment.
Appellees filed their motion to dismiss the appeal on December 24, 1957, just after the appeal period had expired, but the motion was timely, and there are no facts upon which it could be found that appellees had waived the point.
Appellants argued that the motion should not be granted because they had no actual knowledge that the cost judgment had been entered before the notice of appeal was filed, and that they did not receive a copy of the cost judgment as made and entered by the circuit court. Those excuses cannot remove the effect of the statute requiring the payment of such costs.
When a motion for costs was heard and taken under advisement by the court, and a cost judgment then entered, filed and recorded, such information was available on the record, and counsel is charged with knowledge as to the record status of the case at the time of the filing of the appeal.
Under the circumstances this court is without discretion, and must grant the motion, on authority of Walker v. City of Jacksonville, 154 Fla. 893, 19 So. 2d 372. See also, Haile v. Mason Hotel & Investment Co., 71 Fla. 469, 71 So. 540; Berg v. New York Life Insurance Company, Fla. 1955, 81 So. 2d 630; Funke v. Federal Trust Company, Fla.App.1957, 99 So. 2d 636.
The appeal is hereby dismissed.
CARROLL, CHAS., C. J., and HORTON and PEARSON, JJ., concur.
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Citator
Cited By
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Bredin v. Bredin, 111 So. 2d 265 (Fla. 1959)…pecifically taxing the same.” We have several times held that the failure to comply with requirements of the statute and rule will justify a dismissal of an appeal. See O’Connell v. Mason, Fla.1957, 93 So. 2d 71; Spector v. Ahrenholz, Fla.App.1958, 99 So. 2d 714. This is the rule which we have consistently followed in the absence of a waiver by the appellee. No waiver is here present. Berg v. New York Life Insurance Company, Fla.1955, 81 So. 2d 630. In defense against the motion to dismiss the appellant po…
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Ogier v. John H. Swisher & Sons, Inc., 133 So. 2d 575 (Fla. 1st DCA 1961)…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; Busch v. Goodno, 99 Fla. 517, 128 So. 825. . Walker-Skagseth Food Stores, Inc. v. National Surety Corp., see footnote 3; Smith et al. v. Dillard et al., 84 Fl…
Authorities 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)
- Funke v. Fed. Tr. Co., 99 So. 2d 636 (Fla. 3d DCA 1958)