MATTIE J. OGIER, APPELLANT,
v.
JOHN H. SWISHER & SONS, INC., A CORPORATION, APPELLEE
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The court held that payment of accrued costs taxed against an original plaintiff is a mandatory condition precedent to taking an appeal, and payment after the appeal is taken does not cure the default.
Appellant appealed a summary final judgment. Appellee moved to dismiss the appeal for failure to pay costs taxed against appellant. Appellant paid the…
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This appeal is from a summary final judgment in favor of appellee in which the costs incurred by the latter were specifically taxed against appellant. Appellant did not assign the taxation of costs as error. Promptly after the filing of appellant’s assignments of error appellee moved to dismiss the appeal for failure to pay the costs taxed in the trial court as re*576quired by the rule.1 After appellee’s motion to dismiss was set for.argument before this court, appellant deposited in the registry of the trial court a sum sufficient to pay the costs taxed against her. By administrative order this court denied ap-pellee’s motion to dismiss the appeal for the reason that the costs taxed against appellant in the trial court had been paid.
On petition for rehearing we have reconsidered the rule of law applicable to the motion filed by appellee to dismiss this appeal and have concluded that our order of denial was erroneous.
The rule under consideration specifically provides that no appeal may be taken by the original plaintiff in any suit or proceeding until he shall have first paid all costs that have accrued in or about the suit and have been specifically taxed against him up to the time the appeal is taken. We are not concerned with the proviso contained in the rule which relieves payment of costs since the taxation of costs was not assigned as error by appellant, nor was the judgment superseded. The appellate courts of this state have held in various opinions relating to this subject that the payment of costs taxed against him by an original plaintiff before taking an appeal from the judgment rendered against him is a condition precedent to the appeal and is imperatively required by the statute2; that the payment of such costs is an indispensable prerequisite to the right to demand a review by appeal3; and that compliance with the rule with respect to payment of costs is mandatory.4 In requiring compliance with the rule this court has no discretion.5 Payment of or offer to pay the costs by appellant after the appeal is taken will not excuse the default, nor be sufficient authority to deny a motion to dismiss the appeal based upon the ground of failure to comply with the rule.8 The only circumstances under which an appellate court is authorized to deny a motion to dismiss an appeal for non-compliance with the rule regarding payment of costs by the original plaintiff in the trial court is in those instances where appellee has waived its right to insist upon this ground of failure to comply with the rule.6 tion of waiver is not present in the case we now review.
Although enforcement of the rule regarding the payment of costs before appeal is indeed a harsh one, any relief against supposed inequities which may result therefrom must come from an amendment to the rule and not by the process of judicial benevolences. Under the foregoing decisions we have no discretion in the *577matter and are compelled to enforce the mandatory requirements of the rule as it is written.
The order of this court denying appellee’s motion to dismiss, entered herein on September 8, 1961, is withdrawn, set aside and held for naught. An appropriate order will be entered dismissing the appeal.
CARROLL, DONALD K., Chief Judge, and WIGGINGTON and RAWLS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State Rd. Dep't of Fla. v. Bramlett, 171 So. 2d 34 (Fla. 1st DCA 1965)…s should be a matter for the trial judge to decide in the exercise of sound judicial discretion.” See also Orange State Oil Company v. Jacksonville Expressway Auth., 143 So. 2d 892 (Fla.App.1st 1962). See also Ogier v. John H. Swisher & Sons, Inc., 133 So. 2d 575 (Fla.App.1st 1961), dismissing an appeal by a private person for failure to pay costs. The controlling case on the subject motion is State v. Rushing, 17 Fla. 223, 224 (1879), in which appellee Rushing moved to dismiss the state’s appeal on the gro…
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Ogier v. John H. Swisher & Sons, Inc., 139 So. 2d 696 (Fla. 1962)…Certiorari denied without opinion. 133 So. 2d 575.…
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Bush v. Youngblood, 191 So. 2d 559 (Fla. 1966)…blood, tendered a check in the amount of $158.50 for the costs, but Petitioner refused the check. Petitioner contends the refusal of the District Court of Appeal to dismiss the appeal conflicts with Ogier v. John H. Swisher & Sons, Inc. (Fla.App.), 133 So. 2d 575, and City of Miami v. Murphy (Fla.), 137 So. 2d 825. Rule 3.2(f), Florida Appellate Rules, provides : “Payment of Costs.by Original Plaintiff. No appeal may be taken by the original plaintiff in any suit or proceeding until he shall have first pai…
Authorities Cited (14 total)
- Haile v. Mason Hotel & Inv. Co., 71 Fla. 469 (Fla. 1916)
- Cora Akins v. L. B. Bethea & the Perry Baking Co., 160 Fla. 99 (Fla. 1948)
- Busch v. Goodno, 99 Fla. 517 (Fla. 1930)
- Zelda Davies Walker v. City OF Jacksonville, 154 Fla. 893 (Fla. 1944)
- Walker-Skagseth Food Stores, Inc. v. Nat'l Sur. Corp., 148 Fla. 161 (Fla. 1941)
- The Union Bank of Fla. v. Burwell McBride, 2 Fla. 7 (Fla. 1848)
- Callison v. Atl. Coast Line R.R. Co., 82 Fla. 516 (Fla. 1921)
- David Gordon and Wife v. Camp, 2 Fla. 23 (Fla. 1848)
- Smith v. Barney Dillard and D. H. Henley, 84 Fla. 516 (Fla. 1922)
- Funke v. Fed. Tr. Co., 99 So. 2d 636 (Fla. 3d DCA 1958)