FERNANDO A. UNDERWOOD, APPELLANT,
v.
ELLEN UNDERWOOD, APPELLEE
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Fernando Underwood appealed a lower court decision against him, but the appellee Ellen Underwood moved to dismiss the appeal for alleged deficiencies in the record and failure to timely file it. The Florida Supreme Court denied both motions to dismiss, finding that public uncertainty surrounding Florida's new 1868 Constitution constituted good cause for the delayed filing.
The court overruled the appellee's first motion to dismiss based on alleged record deficiencies and denied the second motion to dismiss for untimely filing, finding that the public uncertainty stemming from the adoption of the new 1868 Constitution and difficulties in publishing and distributing it constituted good cause for the delay.
“If an appellee desires to have any material deficiency in the record supplied, he must suggest the diminution, and upon a proper showing, a certiorari will be awarded.”
Establishes the proper procedure for addressing record deficiencies rather than through motion to dismiss.
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Join FLexlaw to unlock all legal intelligenceAn appeal was obtained and a bond given by the defendant (Fernando Underwood). The bond was filed on June 17, 1868, and citation was served on October…
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delivered the. opinion of the court:
This case being upon the docket, the appellee made a motion to dismiss it on the ground of alleged deficiencies in the record. There is nothing in the statutes of the State, nor in the rules of court, authorizing this court to make an order for the dismissal of a cause on such grounds. If an appellee desires to have any material deficiency in the record supplied, he must suggest the diminution, and upon a proper showing, a certiorari will be awarded. If he permits the appeal to be heard without supplying the deficiency, it is his fault. This is no ground for a motion to dismiss. The court cannot open the record upon this motion, except to see whether the appeal has been properly perfected and brought here. The motion is overruled. Whereupon the appellee makes a second motion to dismiss this cause, assigning *433for cause that there is no record, because what purports to be a record was filed at the present term of the court, a term of the court having been held since the appeal was taken; and filed the certificate of the clerk of the circuit court to the effect that an appeal was obtained and a bond given by the defendant; that the bond was filed on the 17th day of June, and the citation -served on the 17th day of October, A. D. 1868. For this cause, unless good cause is shown by the. appellant, the appeal should be dismissed. Such is the requirement of the statute. Strictly ■ speaking, this court should not permit or hear repeated motions for the same order, but as counsel was permitted to argue it, it •should be decided. The appeal was returnable to the term of the Supreme Court then existing, next after it was obtained. The new Constitution ratified in May and proclaimed in June, A. D. 1868, changed the time and place of holding this court to the seat of government in October, 1868.
The general uncertainty which existed throughout the State incident to the great changes then being made in the fundamental law of its government, continued by the difficulties attending the publication and distribution of official copies of the new Constitution, and of the statutes passed at the first session of the Legislature, are considered under the circumstances by the court as good cause shown why this motion should not be granted. It is the duty of the appellant to have his record here at the time prescribed by law, and but for these public reasons this appeal would be dismissed. He has thirty days to perfect his record in, and if he fails to do it, unless for very.good reasons, his ap. peal will be dismissed.
The motion is denied.