GENSLER & SILVERSTEIN
v.
FLORIDA RAIL ROAD COMPANY
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A Florida Supreme Court case addressing whether the dismissal of an appeal under the pre-Code statute destroyed a party's right to prosecute a writ of error within the two-year limitation period. The court held that the dismissal did not destroy the right, and the subsequent appeal under the new Code remedy was proper.
The dismissal of the appeal did not destroy the party's right to prosecute a writ of error. Since appeal and writ of error were concurrent remedies under the old statute, dismissal of one for an irregularity did not bar pursuit of the other. Under the new Code, the party has the same right to pursue an appeal as they would have had to pursue a writ of error under the old statute.
“The appeal and writ of error authorized by the old statute were concurrent remedies. The prosecution of an appeal, as in this case, would not have been a bar to the subsequent prosecution of a writ of error, in the event the appeal was dismissed for an irregularity, such as the want of a sufficient bond, as in this case.”
Establishes the core holding that dismissal of one concurrent remedy does not bar pursuit of the other remedy.
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Join FLexlaw to unlock all legal intelligenceA common law judgment was rendered before the passage of the Florida Code. An appeal was initially prosecuted under the pre-Code statute but was dismi…
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delivered the opinion of the court.
This is a common law judgment, rendered anterior to the passage of the code. At the time it was rendered the party had the right to prosecute an appeal during the term in which the judgment was rendered, and for ten days there..' after, as well as to prosecute a writ of error within two years from the date of the judgment. At a previous term of this court, an appeal, which was prosecuted under the *42statute before the Code, was dismissed for want of a bond. Before the expiration of two years, the right "to prosecute a writ of eiTor was destroyed-by the passage of the code, which abolished..the writ, of error, and substituted therefor an appeal, limiting the time for it's prosecution to .the same period as-existed before in the ease of a writ of error, viz: two years after the date of the entry of the judgment. The limitation of a writ of error under the statute, anterior to the code, is the same as the limitation for the appeal under the code, and the right of the'party under the code now is, in this respect, precisely the same as his right under the old statute. It follows, that if the appellant here could have prosecuted a writ 'of error under the old statute, in the event it had not been repealed, he can now prosecute an appeal. The question therefore is, did the dismissal of the former appeal in this case, taken .under the old. statute, destroy his right to prosecute a writ of error? for if it did not, then he has the same right under the substituted remedy of appeal. The appeal and writ of error authorized by the old statute were concurrent remedies. The prosecution of an appeal, as in this case, would-not have been a bar to the subsequent prosecution of a writ of error, in the event the appeal was”dismissed for an irregularity, such as the,want of a sufficient bond, as in this case.
The principle here involved is sustained by a case report-ed in 8 Peters, 43, where it was held,' that after an- appeal has been dismissed for- want of :an appeal bond, a party -may have another appeal within five years from the decree, ■this being the limitation fixed by the Act of Congress. The court in the case of the U. S. vs. Pacheco, 20 How., 262, say, “the Act of,Congress.authorizes the appeal within five years, and the. period allowed by law cannot be shortened by any rule' or practice of a court;” and that, “after a case has been docketed,'and the appeal dismissed, the party against whom thé decree was rendered'may still,' at any . time within five years from the date of the decree, take a new appeal.”- , In *43this case, the dismissal of the appeal did not operate to destroy the right to prosecute a writ of error. At the time of the passage of the code this right existed, and its exercise mow under the code, through the substituted remedy of appeal, is entirely proper.
The motion is denied.