DORIS HORNSBY, APPELLANT,
v.
JEANETTE PARKER TINGLE, AS ADMINISTRATOR OF THE ESTATE OF WALTER C. (W. C.) TINGLE, DECEASED; JEANETTE PARKER TINGLE; LESLIE B. PIGUE AND MARTHA CORRINNE PIGUE, APPELLEES

Fla. 1st DCA | 1961-10-17
No. C-226
CARROLL, DONALD K„ Chief Judge, and STURGIS and RAWLS, JJ., concur.
134 So. 2d 540 Florida District Court of Appeal, First District (1961) Positive Treatment
Cited by 5 cases

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Synopsis

In this chancery appeal, the court dismissed the appeal for failure to comply with Florida Appellate Rule 3.5(c), which requires assignments of error to point out clearly and distinctly the specific errors alleged. The appellant's single assignment of error merely stated that the court erred in entering the final decree without identifying any particular legal or factual errors.


Holding

The assignment of error does not comply with the appellate rules. An assignment of error must point out clearly and distinctly all alleged errors of the lower court, and a generic charge that the court erred in entering the final decree without identifying specific errors is insufficient and does not permit meaningful appellate review.


Key Quotes

“The assignments of error shall point out clearly and distinctly all alleged errors of the lower court relied on for reversal.”

States the requirement of Florida Appellate Rule 3.5(c) that assignments of error must be specific and clear.

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Facts & Procedural History

Appellant Doris Hornsby appealed from a final decree entered on August 13, 1960. The only assignment of error provided was a blanket statement that th…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellee has moved to dismiss this appeal for failure of appellant to assign error in accordance with Florida Appellate Rule 3..S, subd. c, 31 F.S.A., which provides:

“The assignments of error shall point out clearly and distinctly all alleged errors of the lower court relied on for reversal. Where the alleged errors are based on orders, evidence or charges such matters shall be specifically referred to, and where based on a motion for new trial, the grounds relied on shall he pointed out.”

The only assignment of error herein reads:

“The Court erred in the making and entering of its Final Decree in the above entitled cause bearing date the 13th day of August, A.D. 1960, and recorded in Chancery Order Book 43, Page 271, on the 16th day of August, A.D. 1960.”

Florida Appellate Rule 3.5, subd. c, supra, is based on, is identical with, and supersedes former Rule 10 reading as follows:

“Assignments of error shall be construed liberally so as to permit the Court to consider the alleged errors of the trial court. If based on orders, evidence or charges they should he referred to and if based on motion for new trial the grounds relied on should be pointed out.”

It will be noted that the present rule and its antecedent (Supreme Court Rule 32) substantially modified former Rule 10 by eliminating the directive to liberally construe assignments of error so as to permit the court to consider the alleged errors of the trial court.

In construing former Rule 10, it was held that an assignment of error charging “that the court erred in its entry of final decree” was sufficient to call for review of every error that may appear in a final decree in chancery. Durrance v. First Nat. Bank & Trust Co. of Orlando, 1934, 116 Fla. 526, 156 So. 526, 531; American Express Co. v. Cochrane, 1931, 103 Fla. 426, 137 So. 696, 698. That principle was modified, however, by the adoption of Florida Appellate Rule 3.5, subd. c and its pre-course, Supreme Court Rule 32, and by the decisions interpreting the latter rules. Thus, in Bybee v. Stearn, Fla. 1957, 95 So. 2d 529, 531, which was a suit in chancery to foreclose a li.en, the Supreme Court, speaking through Roberts, J., held that an assignment of error stating that “On the law and the facts of the case a Decree for Plaintiff is required by justice and right,” was insufficient as an assignment of error and was not cured by a more particular statement in the brief. And in McCann Plumbing Co. v. Plumbing Industry Program, Inc., Fla.App.1958, 105 So.2d 26, Pearson, J., speaking for the Third District Court of Appeal, cited Bybee with approval in holding that assignments of error specifying only that a certain decree is contrary to the law and the evidence failed to comply with the spirit of the appellate rules. The cases are legion holding that where appeal is-taken from judgments at law, an assignment of error to the effect that the court erred in entering a particular judgment is-insufficient as being too broad.

The Florida Appellate Rules, as. amended, are designed to “govern all proceedings in the Supreme Court, the district courts of appeal, and the circuit courts in the exercise of their appellate jurisdiction.” Rule 1.1. One of the clear objectives of the present rules of appellate procedure is tO' eliminate, as far as practicable, the former distinctions and differences in the appeal procedure governing actions at law and suits in chancery. The subject Rule 3.5, subd. c, F.A.R., clearly applies to appeals in all civil cases.

*542The movant insists and we agree that the above-quoted assignment of error does not permit a review by this court of the testimony and evidence, to which the entire thrust of appellant’s brief is addressed. Therefore, the motion to dismiss is granted.

Appeal dismissed.

CARROLL, DONALD K„ Chief Judge, and STURGIS and RAWLS, JJ., concur.


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Citator

Cited By

  • Bennett Stewart Fort v. Fort, 167 So. 2d 315 (Fla. 1st DCA 1964)
    …c of Rule 3.5, Florida Appellate Rules, such an assignment of error would probably have been of questionable validity under numerous decisions of the appellate courts of Florida construing the former rule, such as our decision in Hornsby v. Tingle, 134 So. 2d 540 (1961). When the Supreme Court of Florida amended Rule 3.5, effective July 1, 1962, a very different and much broader standard was established for testing the validity of assignments of errors. Paragraph c of the said rule as thus amended now reads…
  • Gregg v. State Rd. Dep't of Fla., 140 So. 2d 328 (Fla. 1st DCA 1962)
    …uninterrupted line of decisions of the appellate courts of Florida, including, among many others, Bybee v. Stearn, 95 So. 2d 529 (Fla.1957), Municipal Court etc., City of Coral Gables v. Giblin, 126 So. 2d 285 (Fla. App.1961), and Hornsby v. Tingle, 134 So. 2d 540 (Fla.App.1961). Rule 3.5 of the Florida Appellate Rules, 31 F.S.A., is as follows: “a. Assignments of Error by Appel- ■ lant. Within 10 days after the notice of appeal has been filed, the appellant shall file his assignments of error with the cler…
  • Hornsby v. Tingle, 138 So. 2d 333 (Fla. 1962)
    …Certiorari denied without opinion. 134 So. 2d 540.…

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