DaCosta v. Dibble

45 Fla. 225 | Fla. | 1903

Lead Opinion

I’er*Ctria.u. -

A ft o»* the tiling of the mandate of this court in the Circuit Court upon the reversal of the'decree (DaCosta, Executor, v. Dibble et al., 40 Fla. 418, 24 South. Rep. 911.) an order was entered overruling the plea and leave granted to defendants to file an'answer. Thereupon an answer was filed, to which there was a general replication, followed by testimony taken before a master, and upon a final hearing a decree -was entered July 25th, 1901, dismissing the bill at complainant’s cost. The transcript filed here shows that complainant on the twenty-first day of January, 1902, entered an appeal from the decree dismissing the bill to the first day of the present term of this court, and a transcript, made up under directions filed subsequent to the entry of the appeal, was filed here June 30th, 1902. '

In October last counsel for appellees made a motion in this court to dismiss an appeal entered in this cause by complainant on the eighteenth day of October, 1901, to the first day of the following January term, because no transcript of the record thereunder had been filed in this court, and also to dismiss the appeal entered on the twenty-first day of January, 1902, because when taken, there was a prior appeal pending in this court and not properly dismissed. From certified copies of record entries filed on the hearing of the motion it appears fhgr complainant on ihe eighteenth day of October, 190.1, duly entered an appeal from the decree in the cause 1 o the first day of the January term of this year, and the entry was duly recorded in the chancery order book. Tt also appears that on the twentieth day of January of this year, raid six days after the beginning of the term to which said last mentioned appeal was returnable, counsel for complainant filed a praecipe with the clerk of the Circuit Court in which ¡the decree w'as entered for a dismissal of said appeal, and the clerk entered what purports to he an order dismissing the appeal. The entry of the appeal on October 18th was to the following January term of this court, and being duly entered and recorded was effective to transfer to this court the cause for a rehearing on the decree dismissing the bill. Southern Life Insurance and Trust Company v. Cole, 4 Fla. 359; State ex rel. Shrader v. Phillips, 32 Fla. 403, 13 South. Rep. 920; Neubert v. Massman, 37 Fla. 91, 19 South. Rep. 625. The action of the clerk, so far as a dismissal of the appeal is concerned, must be regarded as a nullity, as he is not invested with authority to dismiss an appeal to this court duly entered and recorded. The dismissal of such an appeal must ‘be in the appellate court, and it may be done on the voluntary application of an appellant, or for cause on motion of an 'appellee. The practice and. rules for the government of this court contemplate that appeals to it must be dismissed here. When the court is in session plaintiff's in error or appellants may at any time have a-voluntary dismissal of causes proper to be dismissed, and by rule 24 for the government of this court they may voluntarily dismiss a writ of error or appeal during vacation by filing with the clerk of this court a praecipe signed by the attorney of record in this court, upon payment of the costs of the writ of error or appeal. If the plaintiff in error or appellant fails to file in the Supreme Gourt at the time required by law a duly certified transcript.of the record required, and serve a copy on the opposite party., the cause inay be dismissed under rule 12 for the government'of this court, and likewise the cans0 may be dismissed in this court for a failure to file abstracts of the record, or in lieu thereof, copies of the transcript, as provided in rule 20 as amended in January, 1899.

We held in American Contract & Finance Co. v. Perrine, 40 Fla.. 412, 24 South. Rep. 484, that a subsequent appeal entered by the same party from the same decree while his prior appeal is still pending and effective, is irregular and will be dismissed. In referring to cases holding that under such circumstances the second appeal is a nullity, it was sáid: “without committing ourselves to the proposition that the second appeal is a nullity, as held by these authorities, we are entirely satisfied that it is irregular for a party to enter a second appeal from the sanm decree while his first is still pending and effective, and that because of such irregularity the second appeal ought 0; be dismissed.” The facts under which this ruling'was made were that on the thirtieth day of March, 1898, an a; peal was duly entered of record from decrees made' prior thereto lo the first day of the following January term of this court, and on the ninth of May of that year assignments of error and directions for making up the transcript were filed and copies served on the opposite parties who gave no additional directions. No transcript was shown to have been made up under the directions. On the thirtieth of May appellants, without dismissing their previous appeal, entered and had recorded another appeal returnable to a day within the June term of this court, and under this appeal assignments of error and directions were filed, and. a transcript made up, which was filed in this court on the first day of the June term. lindel the last directions filed by appellant both entries of appeal were incorporated in the transcript. This case clearly holds, and we think correctly, that a subsequent appeal entered by the same party from the same decree while there is a prior pending and effective one is irregular.

It was held in Garrison v. Parsons, 41 Fla. 143, 25 South. Rep. 336, that an appeal taken within a period less than thirty days from the first day of a succeeding term of this court returnable to the fir^t day thereof conferred no jurisdiction upon this court, and a subsequent appeal duly taken by the same party from the same decree was permissible. A void appeal does not transfer the cause to this court. Under the former practice of court provided by. statute for taking appeals at lav it was held in Baker v. Chatfield, 23 Fla. 62, 1 South. Rep. 779, that an abandonment of an attempt to take an appeal, or an omission io perfect an appeal by giving the required appeal bond, did not preclude the subsequent suing out of a writ of error, and the use of a bill of exceptions previously made up in the case. However, tinder the statute permitting the appeal, a bond was essential to its effectiveness, and where there is a void or ineffectual appeal a second one, as shown, may be entered.

In Glasser v. Hackett, 37 Fla. 358, 20 South. Rep. 532, tbe rule in reference to two suits pending in trial courts was applied to writs of error, and it was held that a motion to dismiss a writ of error because of the pendency of a prior writ of error is in the nature of a plea in abatement and should uot he granted where the first one is wholly ineffectual* to accomplish its purpose, or where it has been dismissed. In that case a writ of error, effectual in every respect, was pending when the second one was sued out to a subsequent term of this court, but the former one had been dismissed by formal order here when' the motion to dismiss the latter ivas made. In the case before us the appeal entered in October, 1901, vais effective tó transfer the cause to this court and -there has never been any dismissal of it, so the principle announced in Glasser v. Hackett, supra, restricted to the fads of the case, does not apply. A party may abandon proceedings under an appeal duly entered by a failure to file the required -transcript of the record, and thereby forfeit his right to have the ease reviewed on its merits, and subject it to. dismissal in the appellate court, but should he be permitted, with one appeal duly entered and undisposed of, to pile up another on the same record on the ground that he had, abandoned the first? If so, the appellate court must, in the multiplied cases that may be presented under two effectual appeals, determine what acts will amount to an abandonment in the different cases. Under our practice there is no necessity to clog up and confuse the appellate proceedings in this court by double appeals, mid we are, therefore, of opinion that when an appeal duly entered of redord and effectual in every respect to transfer the cause to this court for review lias been taken, it is irregular for the appellant during the term to widen it is returnable to enter another without dismissing the first, and in the absence of such dismissal before the faring of a motion to dismiss, the motion should be granted. Under this view the motion to dismiss should be granted, and it is so ordered.

TAYLOK, C. J., being disqualified, took no part in the decision of this case.

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Dissenting Opinion

Carter, J.,

dissenting.

On October 38, 1901, appellants entered their appeal to (he January term, 1902, of this court, from' a decree of the Circuit Court dated July 25, 1901. No transcript was filed in pursuance of this appeal, and after the return day thereof had passed, viz: on January 20, 1902, appellant’s counsel filed in the court below a praecipe for the dismissal of that appeal, and the clerk entered in the Chancery Order Book an order purporting to dismiss it in accordance with the praecipe. No effort was made to prosecute that appeal further than the filidfe and record of the entry of appeal, nor does it appear that any supersedeas was obtained thereon.

After the supposed dismissal of that appeal, appellant on January 21, 1902, entered another appeal, 'returnable to the first day of the June term, 1902, of th|s court, ha i same duly recorded, and filed in this court in June, 1902, a transcript duly made up in pursuance of directions given after the entry of the second appeal, in which all reference to the former appeal is omitted. Appellees producing the certificate required by section 1275 Revised Statutes (which by section 1462 Revised Statutes is made applicable to appeals; in chancery), ask that the first appeal be dismissed in accordance with the requirements of that statute, because of the failure to file transcript of the record as required thereby. No “good cause” is shown for the failure, to file the transcript in pursuance of that appeal; on the contrary, it affirmatively appears that the appellant has abandoned that appeal by attempting to dismiss it, and I think, therefore, that the first appeal ought to be dismissed.

The appellees further move the court to dismiss the see-

• ’ appeal because when it was taken the prior appeal was pending in this court, and had not been dismissed. T shall not commit myself to the proposition that the praecipe to and order of the cierk in the court below are nullities in so far as they purport to dismiss the appeal, but for the purposes of ¿this case- shall assume that the appeal was not dismissed thereby. But it does-not follow, because they could not operate as a dismissal, that they shall not be given any effect whatever. On the contf&w, they constitute the very highest evidence that the appellant intended to abandon that appeal, and are relied upon here as showing his right to enter the second appeal. No effort was ever made to perfect the first appeal after this action was taken in the court below, and in the face of this action appellant would have been precluded from doing so upon the ground that he had abandoned his appeal. Ellsworth v. Haile, 29 Fla. 256, 10 South. Rep. 612. In Baker v. Chatfield, 23 Fla. 62, text 63, 1 South. Rep. 779, it is said: “The abandonment of an attempt to perfect an appeal in a common law action under our statutes, or, in other words, the failure or omission after having entered an appeal to give the required bond within the thirty days allowed by the statute is not a bar to the suing out a writ of error to the same judgment after the expiration of the thirty days and within two years from the date of the judgment.” While in the majority opinion that decision is put upon the principle announced in Garrison v. Parsons, 41 Fla. 143, 25 South. Rep. 336, viz: that the appeal by reason of the failure to give the bond was void, it is clear that the court had in mind the application of a different principle, viz: that the appeal was, for the reason stated, abandoned, and that the abandoned appeal would not bar. a subsequent writ of error from the same judgment. And this rule is sustained by the authorities. 2 Enc.v. Law and Procedure, 529, 530 and notes.

There is nothing in American Contract & Finance Co. v. Perrine, 40 Fla. 412, 24 South. Rep. 484, which can be construed as holding that a party can not abandon his appeal and take another without actually dismissing the first. There was no abandonment in that cáse. Both a ripeáis were entered to the same term, assignments of error and directions to the clerk were filed upon each appeal, both appeals and the directions and assignments of er ror upon each were put into the transcript by appellants’ directions, and the transcript was filed here upon the return day of the first appeal. These facts show that appellants intended to rely upon both appeals. It is stated therein that it is irregular for a party to enter a secón 1 appeal iron; the same decree while his first is still pending and effective, but, as I have shown, the first was not effective in this case because it had been abandoned. The rule announced in that ease is fully met in this, and as the first appeal was not effective, the second must be sustained under the authority of that decision. The majority of the court purport to follow that case, and to limit .the former cuse of Glasser v. Hackett, 37 Fla. 358, 20 South. Rep. 532, while the effect of the decision is to overrule and demy the authority of both cases in so far as they declare or imply that a former ineffective appeal will not bar a second, and to lay down the rule that any former pending appeal will bar a sécond, unless such former appeal be void. In my opinion such a doctrine is contrary to authority elsewhere, and is upheld only by denying the authority of previous decisions of this court. The argument urged in support of the ruling here made admits that a party may abandon appellate proceedings and thereby forfeit his right to a review of his case on the merits and subject it to dismissal by the appellate court, but niain•taims that after an appeal has by abandonment become valueless and ineffectual to give relief or to do the other party harm, it may still be used to. deny the party the right to a hearing upon another appeal taken from the same judgment, because it is assumed the abandoned appeal will, together with the second appeal, “clog up and confuse the appellate proceedings,” and because “the appellate court must in the multiplied cases that may be presented under two effectual appeals determine whaf acts '«ui amount io an abandonment in the different cases.”

L am unable to see that an abandoned appeal,can be used either to “clog up” or “confuse” appellate proceedings, under any circumstances, or that an abandoned appeal can be considered an “effective” one, and if it be true that a court may reject a correct principle and refuse to adopt or apply if, because it may become necessary in future, case s to determine whether a given state of facts brings a particular case within it, I have found no authority so holding. Carried to its logical conclusion, such a doctrine would authorize the court to reject any rule or principle simply because cases may be imagined wherein it would be difficult to determine if it applied. In my humble judgment courts are not justified in refusing to adopt or apply a correct principle or rule of law, because cases nmy in future arise wherein it will be difficult to say whether the facts bring them within the rule or principle. • Courts, and particularly courts of last resort, do not lie “on flowery beds of ease,” nor sail over smooth waters always, nor are tlhey authorized to disregard legal principles in ordere to mark out easy paths for them to follow. They can not refuse to determine a difficult problem when properly presented, nor refuse to apply the law, nor deny its authority, nor overrule decisions upon any such specious arguments as these advanced here. We must not forget that the dismissal of this appeal denies appellant a hearing in the court of last resort, and that in de-' nying him a hearing we are denying a right which is given him by law, and which is not qualified by any provision that he must bring his case in such a manner as not to “clog up and confuse” appellate proceedings, but only that it shall be brought according to the rules of the law. In reply to the argument that appeals of this nature would “clog up and confuse” appellate practice, I quote the remarks of the court in Harris v. Ferris, 18 Fla. 81: “It was remarked that if second appeals were allowed it would open the door to abuses by successive appeals, and would lead to delay and annoyance, but as cases arise the court will determine, as to the good faith of appellants and endeavor to protect itself and opposing parties against imposition.” The rule which forbids the maintenance of two effective appeals at the same time is based upon reason and authority. As said in American Contract & Finance Co. v. Perrine, supra, “there can be no necessity’ for a second appeal in such cases, as the first can be made to accomplish every purpose for which the second may be made available. Successive appeals of this nature won] d burden the court’s docket and cause expense and trouble to parties t litigant for no useful purpose.” And in Glasser v. Hackett, supra, it is'said: The reason upon which the rule proceeds is that the first suit^ effective and available, and affords ample remedy to the plaintiff, and therefore the second suit is unnecessary and consequently vexatious. There seems to' be no propriety in extending the rule to cases where the reason does not exist. Therefore, where it is shown that the former suit is ineffectual to accomplish its purpose, or that it' has been dismissed and is not pending, the second suit appears upon the face of the proceeding as necessary and not vexatious and should not be abated.”

The view announced by the majority in this case was presented,to and considered by the court in that case and rejected as untenable, and to my mind it .is utterly so. The true reason for the correct rule is stated in the Glasser case; and where, as in this case, th$ first appeal was expressly abandoned»before the second was taken — has never been attempted to be perfected since that time, the term to which it was returnable has expired long before this motion was made — the opposite party has been put to no trouble or expense in relation thereto, the second is not vexatious, and should be maintained. To my mind the dismissal of the second appeal in this case is based upon tlie most extreme technicality, and I think it is unsuppbrted by either reason or authority.

The motion lo dismiss the second appeal should be de nied.

1 am authoi ized to say that MAXWELL, J., concurs in this opinion.

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Rehearing

(On Petition for Rehearing.)

Judge MALONE, of the Second Judicial Circuit, sitting in place of Mr. Justice HOCKER, who is disqualified Cockrell, J.

Error in the judgment of this court is alleged in the petition on the sole ground that we overlooked and failed to consider certain facts which were before us to be considered. The omission complained of is “that at the time of the filing of the second appeal, to-wit: on January 21st, 1902. the former appeal or entry of appeal, filed October 18th, 1901, to the January term, 1902. of this court had been abandoned and become inoperative, and that even though such former appeal could not be dismissed'by the filing of a. praecipe for that purpose with the clerk of the Circuit Court and entry of order of. dismissal on the Chancery Order Rook, still the fact of such praecipe having been filed and such order having been entered in conformity therewith, would show a complete* record of abandonment of said former appeal* such as would, your pe. titioner suggests, permit him to enter another appeal.’’

The opinions filed in this cause by the court and by the dissenting justices show clearly that this proposition was nor only not overlooked, hut was the chief point of difference on which tin* court divided, and was thoroughly considered.

This disposes of the only suggestion in the petition and as that is disproved by the record, the petition will be denied.

“The petition for a rehearing filed in this cause • has been considered. It suggests nothing that had not been carefully considered by us in reaching the conclusions set foDii in the main opinion.” Sauls v. Freeman, 24 Fla 225, 4 South. Rep. 577.

Mr. Chief-Justice TAYLOR, being disqualified, took no raH in the decision of this case.

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Dissenting Opinion

(’autre, J.,

dissenting.

“The petition for a rehearing filed in this cause has omitting formal parts is as follows: “Humbly complaining your petitioner*, the appellant in thepbove stated case, would respectfully show that on October 31st, Í). 1902, the appellee filed in this court a motion to dismiss the appeal taken and perfected in the above entitled cause, and that on December 17thy A. T). 1902, this court filed its opinion and rendered its judgment granting said motion and dismissing said appeal.

•‘That the ground of said judgment sustaining said motion, as shown by the opinion filed, was that at the-time of the fa-king of said appeal on January 21st, 1902, there was a prior appeal pending in this court and not pronc-rly dismissed.

“Your petitioner would further show unto your Honors that he. is advised that there is error in the judgment rendered bv this court, and that the court overlooked and faded to consider certain facts which were shown by the transcript of the record which was before the court to be considered. And your petitioner would suggest that it appears form the record that at the time of the filing of the second appeal, to-wit: on January 21st, 1902, the former appeal or entry .of appeal, filed October 18th, 1901,. to the January term, 1902, of this court, lmd been abandoned and become inoperative, and that even though such former appeal could not be dismissed by the tiling <>f a praec ipe • n ihat purpose with the clerk . r th - ■ Court an cm try of order of dismissal'on the chancery order !.>■ , . l! >• 'ad of sach pi<uv.?.c lav <,j; m tiled and sack order having been <mre¡‘ed in conformity the re with, would show a complete record of abandonment of ward formen* appeal, such as would, your petitioner sugr gesta, permit him to enter another appeal.

‘'And your petitioner would further suggest that the record shows that said second entry of appeal was entered and taken on.the 21st day of January, 1902, after the return day of the term to which said former appeal was taken, therefore said former appeal had become per «o inoperative as the return day to which it was taken had passed; consequently petitioner suggests that said former appeal had not only been completely abandoned, but had by expiration of time become ineffective.

“And for these reasons petitioner suggests that the said motion for dismissal should have been denied as'to a dismissal of (he second appeal, as he. is by said judgment of Hiis courl deprived and denied the right which is given him by law to have his cause heard in the court of last resold -

"‘Wherefore petitioner humbly suggests that for the reasons stated a rehearing ought to be granted, and prays that the court, will grant such rehearing, and upon such rehearing ihat said courl will deny (he seal motion to dismiss (he appeal of your’petitioner, filed on January 2!"4, ikb.h and ¡eíitioner will ever pray, etc.”

Rule 27 of this court regulating applications for rehearing provides Ihat “the petition shall not assume1 any new ground or position not taken upou the; argument, or in the points made upon which the cause was submitted, but must set forth concisely the particular omission or cause for which the judgment is supposed to be erroneous.” The rule is undoubtedly broad enough to authorize the party applying for a rehearing to assign as an ‘‘omission or cause for which the judgment is supposed to be erroneous” an error of law as well as an ew?or of fact, whether,.caused by failure to give due consideration to facts actually considered, by inadvertently omitting to consider facts proper to be considered, by .giving undue weight to certain facts, by misapplying- correct principles of law to facts duly considered, or by applying to facts duly considered erroneous principles <>f law. In fact it is broad enough to require the court to grant a rehearing wlnm properly applied for, upon any ground whether of law or fact that would render the 'judgment erroneous. Such has been the uniform construction of the rule during !he period of my six velars’ service upon this bend), and I find no decisions of Ciis court laying down a different rule. In Jacksonville T. & K. W. Ry. Co. v. Peninsular Land. Transp. & Manuf'g. Co., 27 Fla. 157, 9 South. Rep. 661, the court says ‘‘the proper function of a petition for a rehearing is to present to us any omission or cansí* foi* which our judgment is supposed to be erroneous. No new ground ot position, not taken in argument submitting fIk- cause, can be assumed. It is our duty to consider the petition in the light of this rule, and to grant a rehearing if_we find in it anything which gives us reason to apprehend that the judgment -rendered is erroneous ~ We havi; carefully considered the points made in this petition, and ibid nothing in any of them to justify a rehearing or that in the least shakes the conclusions reached in the main opinion/’ Hee, also, First National Bank of Florida v. Ashmead, 23 Fla. 379-390, 2 South. Rep. 657-665, where the question is discussed mo'ie . at' length. The substance of the petition in this case'is that this, court was in error in its holding 1hat a second appeal could not he taken under the circumstances staled in the opinion upon the former hearing. It is time the petition alleges the omission to consider certain facts, but it also alleges as “ground'’ for a f-eheariug that the former appeal had a:; a matter of law, from the facts shown by tlie record, been abandoned, and become ineffective, before the secowd appeal ,v>ni eniered and 1hut therefore the second appeal should not have b<>ev» dismissed. It can not lie Moulded that the whole scope and purpose, of the petition, is to call the attention of the court to what petitioner thinks is an error of law in the judgment, pointing out specifically the manner in which such supposed error arose. riurely this is all that is required to have this court determine whether "’there is reason to apprehend that tin* judgment rendered is erroneous” in resueet to'the “cause” presented by the petition, whether that cause be an m-ror of law or fact.

The majority opinion in this case semas to proceed upon the theory that upon a. petition for a rehearing it is only necessary for the oem-i to'asiertain thaMt did not «verlook the particnlr.i' malte’- complained of. and that if the court gave '-arefu! comido rat ion to such matter apon the first hearing, its conclusions of law thereon must necessarily be r;ght. But experience proves that such assumption of infallibility is contrary to the nature of man. and F’e cu'e. remeding roll carings is based upon this trait of human nature. Parlies are not only entitled to a fair an I full consideration of questions of law and fact involved in their cases, but to correct decisions of all such ques: tions so far as the court can decide correctly. And if it is thought the court has committed an error either of law or fact, the.purpose and object of a petition for a rehearing, is to bring the matter to the attention of the court, and the court must, in my opinion, examine the grounds alleged in the petition sufficiently to be able to say tint there is no reason to apprehend that the judgment is erroneous upon the ground suggested, béf-ore denying such petition. It may be consoling to a court to be able to imagine that it possesses the divine attribute of infallibility — that its former decision must necessarily be right, because it did not overlook any of the fact» of the cdse,— hut it would be more satisfactory to the litigant to *say to him that the court upon reexamining the grounds of its former opinion has no reason to doubt its correctness. That is what, in my judgment, the rule of practice and our judicial duty requires' us to say before wo finally deny him the only remedy lie possesses for the correciion of errors in the judgment against him. Courts elsewhere act upon the principle that “to err is human,” and permit petitions for rehearing to question the .correctness of legal principles announced in the opinion, even in < ises where the correctness of such principles “was the cii'ei point of difference on which the court dividía! and was thoroughly considered.'' 18 Ency. Pl. & Pr., p. 31; 3 Ency. Law & Proc. 212, 213.

It is most important at this time, when the public demand is, apparently for quick decisions, to maintain the integrity of the long established practice upon petitions for rehearing, for this is the only method for correcting errors that will occasionally creep into the best considered decisions, and which must creep into those made under the pressure of a demand for speedy decisions. In my opinion it is no answer to a petition for a rehearing to say that the court upon the former hearing duly considered a particular question of law or fact, but the only proper answer to be given is that the former decision is correct. This answer is not given in this case, and I dissent from the judgment denying the petition.

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Rehearing

Maxwell, J.

I favor the granting of the petition for rehearing in t¿is case, as I think the decision of the court therein erroneous fov the reasons stated the dissenting opinion filed by Mr. Justice CARTER, and concurred in by me. I do not dissent, however, from the view of the majority of the court that they are authorized, under the circumstances stated, to deny the rehearing without an examination of the merits of a question fully considered and determined at the former hearing.

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Rehearing

On Petition for Rehearing.

(.Judge MALONE, of the Second Judicial Circuit, sit, ting in place of Mr. Justice HOOKER, disqualified.) Cockrell, J.

1. A petition for a rehearing which suggests nothing that has not been fully considered by the court in mailing; its decision, should be denied.

2. Where the sole ground of a petition for a rehearing is that the court overlooked and failed to consider certain facts,.and these facts were fully considered and actually (•(instituted rice points of difference on which the court divided, as disclosed in the opinions, the. petition vdii be denied,

Petition for rehearing denied.

CARTER, P. J.. dissenting. TAYLOR, O.. J.,' disqeali: tied, took.no part in the decision. Ü. C. Thomas, for Fetitioner.