SPENCER B. GREEN AND MARGARET J. GREEN, APPELLANTS,
v.
B. H. COOK, APPELLEE
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The Florida Supreme Court affirmed an order striking portions of the defendants' answer and denying leave to amend, finding no substantial error in the trial court's rulings and rejecting the appellants' frivolous appeal claim.
No error was committed in either order. The appellate court affirmed both the order striking portions of the answer and the order denying leave to amend.
“Although the appellate court upon, a motion to dismiss an appeal upon the ground that it is frivolous will make only a superficial examination of the record for the purpose of ascertaining whether any questions are presented which may be considered debatable, yet, when such examination reveals no substantial error in the proceedings and the court is satisfied of the correctness of the judgment or decree attacked and can perceive no reason for deferring the consideration of the case and the briefs are filed and the cause ready to be submitted, the court will by affirmance of the decree or judgment finally dispose of the appeal.”
Establishes the standard for appellate review when an appeal is challenged as frivolous; the court may proceed to final disposition by affirmance if no substantial error is found.
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Join FLexlaw to unlock all legal intelligenceThe defendants filed an answer in a civil case. The trial court granted a motion to strike certain portions of that answer. The defendants then sought…
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— This case is before the Court on motion to dismiss the appeal because the plaintiffs in error failed to comply with amended rule 20 in the preparation of their brief and also upon the ground “that said appeal was frivolous and was not taken by appellants in good faith, but was so taken by the appellants for the sole purpose of delaying the final adjudication of the cause on its merits. ’ ’ Appellants were allowed to file an amended brief to conform to the provisions of amended rule 20'. The amended brief does not comply with the provisions of the amended rule 20 in stating the questions involved, but as it appears that a real effort was made to comply with the rule in this respect and as members of the bar have not been fully advised as to the construction given by the Court to the language of the rule, we are not inclined to dismiss the cause because of the lack of strict compliance in this regard.
On consideration of the motion to dismiss because the appeal is frivolous it has been necessary for us to look to the transcript of the record and consider the questions there presented and as the brief on behalf of the appellant is before the Court, we have decided to make final disposition of the case, as was done in the case of Roberts Brothers, et al. vs. Langford, 99 Fla. 1268, 128 Sou. 810, wherein it was held:
“Although the appellate court upon, a motion to dismiss an appeal upon the ground that it is frivolous will make only a superficial examination of the record for the purpose of ascertaining whether any questions are presented which may be considered debatable, yet, when such examination reveals no substantial error in the proceedings and the court is satisfied of the correctness of the judgment or decree attacked and can perceive no reason for deferring the consideration of the case and the briefs are filed and the cause ready to be submitted, the court will by affirmance of the decree or judgment finally dispose of the appeal.”
The appeal is from an order granting motion to strike *839certain portions of the answer filed by the defendants from the order denying defendants leave to further amend their answer.
It appears that no error was committed in the entry of either of the orders appealed from and, therefore, the same should be affirmed. It is so ordered.
Affirmed.
Buford, C.J., and Whitfield, Brown and Davis, J.J., concur.
Ellis and Terrell, J. J., not participating.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Holtsberg v. McCarty, 117 Fla. 554 (Fla. 1934)…se to retain the case on the docket for re-examination of the record or for further consideration, so following the practice of this Court heretofore followed in the cases of Roberts Bros. v. Langford, 99 Fla. 1268, 128 Sou. Rep. 810; Green v. Cook, 102 Fla. 837, 136 Sou. Rep. 454, and kindred cases recently decided by this Court, the decree appealed from will be affirmed at this time to finally [*556] dispose of the case and avoid the necessity of a re-examination and reconsideration of this same record at…
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Ex parte Sams, 67 So. 2d 657 (Fla. 1953)…he merits, where briefs have been filed, arguments in respect to the merits have been had, and no reason can be [*659] perceived for deferring the consideration of the case longer. Roberts Bros. v. Langford, 99 Fla. 1268, 128 So. 810; Green v. Cook, 102 Fla. 837, 136 So. 454; Knabb v. Mabry, 134 Fla. 244, 183 So. 748. It cannot be said from a cursory examination of the record that the appeal is so devoid of merit that it presents no fairly debatable question with reference to the propriety of the judgment…
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Crichlow v. The Equitable Life Assurance Soc'y of the United States, 105 Fla. 640 (Fla. 1932)…s motion under Section 4639 C. G. L., 2920 R. G. S., which provides for quashing proceedings in error when an appeal is taken against good faith and merely for delay. See Norfleet Holding Co. v. Price, 101 Fla. 666, 132 Sou. Rep. 643; Green v. Cook, 102 Fla. 837, 136 Sou. Rep. 454. This motion, being made by the appellee before the return day of the appeal, was accompanied by a complete transcript of the record in the court below, prepared and filed here by the apellee in order to demonstrate its contention…
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- Roberts Bros. v. Bertie Langford, 99 Fla. 1268 (Fla. 1930)
- Doyle E. Carlton v. Raulerson, 100 Fla. 10 (Fla. 1930)