HARRY M. JOHANSON AND DANIEL VASQUEZ, JOINT OWNERS, PETITIONERS,
v.
JOSE MANUEL INSUA, INDIVIDUALLY AND AS AGENT FOR THE DOMINICAN AIR FORCE, A DIVISION OF THE GOVERNMENT OF THE DOMINICAN REPUBLIC; DOMINICAN AIR FORCE, A DIVISION OF THE GOVERNMENT OF THE DOMINICAN REPUBLIC; MERTICE A. MADDEN AND HARRY R. PLAYFORD, AS TRUSTEES OF MADDEN & PLAYFORD AIRCRAFT, INC., A/K/A MADDEN & PLAYFORD AIRCRAFT CORP., A DISSOLVED FLORIDA CORPORATION, RESPONDENTS
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The Florida Supreme Court reviewed a dismissal of an appeal for failure to pay costs. The Court found the District Court of Appeal lacked the benefit of a recent Supreme Court decision when it dismissed the appeal and therefore remanded the case for reconsideration.
No, the dismissal was not proper because the District Court of Appeal did not have the benefit of the Supreme Court's decision in Nolan v. Eshleman when it made its ruling.
“The District Court of Appeal, at the time of its decision on December 2, 1964, did not have the benefit of the decision of this court in Nolan v. Eshleman, 183 So. 2d 205, decided February 16, 1966, and therefore the cause is returned to the District Court with authority to vacate its order of dismissal, and for further consideration by that Court of this case in the light of our holding in the opinion in Nolan v. Eshle-man, supra.”
This quote explains the primary reason for remanding the case: the lower court's decision was made without considering a relevant Supreme Court precedent.
The respondents filed a motion to dismiss the petitioners' appeal for failure to pay taxed costs within the required timeframe. The District Court of …
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Respondents, Jose Manuel Insua, et al., filed their motion to dismiss appeal for failure to pay costs under Florida Appellate Rule 3.2(f), 31 F.S.A. contending that the petitioners, Harry M. Johanson and Daniel Vasquez, were required to pay the taxed costs “within ten (10) days upon written demand.” The motion was granted and the cause dismissed, the order of the District Court stating, “This cause having come on for hearing on appellees’ motion to dismiss appeal for failure to pay costs and the court having considered same, it is ordered that said motion is granted and this appeal from the Circuit Court of Dade County, Florida (No. 62C-13817) be and the same is hereby dismissed.” By petition for writ of certio-rari it is contended, inter alia, that said dismissal is in error.
The District Court of Appeal, at the time of its decision on December 2, 1964, did not have the benefit of the decision of this court in Nolan v. Eshleman, 183 So.2d 205, decided February 16, 1966, and therefore the cause is returned to the District Court with authority to vacate its order of dismissal, and for further consideration by that Court of this case in the light of our holding in the opinion in Nolan v. Eshle-man, supra.
It is so ordered.
THORNAL, C. J., and THOMAS, ROBERTS, CALDWELL and ERVIN, JJ., concur.
TROWBRIDGE, Circuit Judge, dissents on lack of jurisdiction.
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Parker v. Rinker Materials Corp., 222 So. 2d 203 (Fla. 1969)…e settled. The order of the District Court is quashed, with directions to reinstate the appeal. ERVIN, C. J., ROBERTS, DREW and CARLTON, JJ., and RAWLS, District Judge, concur. . Nolan v. Eshleman, 183 So. 2d 205 (Fla.1966). . Johanson v. Insua, 184 So. 2d 421 (Fla.1966). . Florida Appellate Rule 3.2, subd. f., 1967, reads as follows: “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 paid all costs that have accr…
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- Blue v. Jewell Calder Blue, 183 So. 2d 205 (Fla. 1966)