JO GILL, TRUSTEE FOR JOHN RINGLING, ET AL.,
v.
M. A. SMITH, AS LIQUIDATOR OF THE BANK OF SARASOTA
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This case involves a second appeal where the appellee moved to dismiss the appeal as frivolous. The court, after reviewing the record, found the appeal not frivolous but affirmed the lower court's orders as without error. The court also addressed the appellant's motion for voluntary dismissal.
The court held that while the appeal was not frivolous, the orders appealed from were without error and should be affirmed. The court also considered the appellee's motion to dismiss despite the appellant's motion for voluntary dismissal.
“In lieu of dismissing an appeal as frivolous we may affirm the decree, order or judgment appealed from, where the time of the appellate court has been required to be given over to a study of the record and briefs in order to decide the motion and it has been made clearly apparent to it from such study that no good purpose will be subserved by continuing the appeal on the Supreme Court’s docket, notwithstanding the appeal cannot be characterized as frivolous' within the rule governing dismissal of or quashing frivolous appeal.”
Explains the court's authority to affirm a judgment even if the appeal is not strictly frivolous, if further appeal would serve no purpose.
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Join FLexlaw to unlock all legal intelligenceThis was the second appeal in the case. The appellee moved to dismiss the appeal as frivolous and sought damages. The appellant subsequently moved for…
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This is the second appeal in this cause. Gill v. Smith, 117 Fla. 176, 157 Sou. Rep. 657. The case *294is now before this Court on a motion by appellee to dismiss the appeal as frivolous and to assess 10% damages against appellants in accordance with the applicable statute. In re: Benedict's Estate, 117 Fla. 472, 158 Sou. Rep. 276; Section 4639 C. G. L., 2920 R. G. S., 4965 C. G. L.. 3173 R. G. S. Appellant has subsequently moved for a voluntary dismissal of his own appeal without prejudice, as provided for by our rule. Thompson v. Filer, 99 Fla. 539, 126 Sou. Rep. 766; Supreme Court, Rule 23.
The motion of appellee to dismiss the appeal as frivolous and to assess damages as for a frivolous appeal having been first filed is entitled' to consideration at the hands of this Court despite the motion of appellant for a voluntary dismissal of his own appeal without prejudice. In lieu of dismissing an appeal as frivolous we may affirm the decree, order or judgment appealed from, where the time of the appellate court has been required to be given over to a study of the record and briefs in order to decide the motion and it has been made clearly apparent to it from such study that no good purpose will be subserved by continuing the appeal on the Supreme Court’s docket, notwithstanding the appeal cannot be characterized as frivolous' within the rule governing dismissal of or quashing frivolous appeal. Holtsberg v. McCarty, 117 Fla. 554, 158 Sou. Rep. 123.
A study of the record and briefs in this case has convinced us that while the appeal herein is not frivolous, the orders appealed from are without error and should accordingly be affirmed under the rule last above stated, with leave to appellee to include the costs of the transcript as advanced by him in the taxable costs allowed to him on this appeal.
Affirmed and remanded.
Whitfield, C. J., and Brown and Davis, J. J., concur.
*295Ellis, P. J., and Terrell, and Buford, J. J., concur in the opinion and judgment.
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Citator
Cited By
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Wolf v. Cleveland Elec. Co., 58 So. 2d 153 (Fla. 1952)…considered as the final judgment in this case, it would be necessary that we affirm the same under the authority of National Surety Corp. v. Sholtz, 123 Fla. 110, 166 So. 213; Treat v. State ex rel. Mitton, 121 Fla. 509, 163 So. 883; Gill v. Smith, 119 Fla. 293, 161 So. 282. The appeal is quashed. SEBRING, C.J., and CHAPMAN and HOBSON, JJ., concur.…
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Twyman v. Gus Roell, 120 Fla. 141 (Fla. 1935)…ing and before the Court for consideration. An examination of the briefs does not confirm the contention of the appellees that the appeal is wholly devoid of merit, as charged in the motion to dismiss, nor do we feel that the rule of Gill v. Smith, 119 Fla. 293, 161 Sou. Rep. 282 ( 2nd headnote), should be applied in the circumstances of the controversy here disclosed. Therefore the motion to dismiss the appeal as frivolous is denied and the cause ordered to stand on the docket for disposition in due cour…
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Nautilus Operating Co. v. Donald S. Lavigne, Inc., 109 So. 2d 775 (Fla. 3d DCA 1959)…ynski v. Bank of Jacksonville, 1887, 23 Fla. 346, 2 So. 696; Long v. Herrick, 1891, 28 Fla. 755, 10 So. 17; Redmond v. W. M. Donaldson & Co., 1895, 35 Fla. 167, 17 So. 70; In re Benedict’s Estate 1934, 117 Fla. 472, 158 So. 276; Gill v. Smith, 1935, 119 Fla. 293, 161 So. 282. .Florida Statutes 1957, Vol. 3, page 3219, 3220, 31 F.S.A.…
Authorities Cited
- Holtsberg v. McCarty, 117 Fla. 554 (Fla. 1934)
- Gill v. Smith, 117 Fla. 176 (Fla. 1934)
- In the Matter of: The Estate of William H. Benedict, 117 Fla. 472 (Fla. 1934)
- Thompson v. Filer, 99 Fla. 539 (Fla. 1930)