Florida Central & Peninsular Railrod v. Peacock

| Fla. | Jan 15, 1902

Per Curiam.

One of the grounds to- dismiss the writ is that if was issued on the seventh day-of October, 1901, returnable to the present term of this ooturt, and was not recorded as required by law in the clerk’s office where the judgment was rendered until the seventh day of January, A. D.' 1902. The first day of the present term of this court was the fourteenth day of January. The showing before us fully sustains the ground of the motion stated, and it would have to be sustained were it not for the fact that defendant in error has waived this defect by incorporating into his motion to dismiss grounds that make a general appearance for him in this court. The fact that he appears special’y to make the motion will not save him from a general appearance if grounds in the motion have that effect. Oppenheimer v. Guckenheimer, 34 Fla. 13" court="Fla." date_filed="1894-06-15" href="https://app.midpage.ai/document/oppenheimer-v-guckenheimer-4914629?utm_source=webapp" opinion_id="4914629">34 Fla. 13, 15 South. Rep. 670.

Another ground of motion to dismiss is that plaintiff in error has not filed a true transcript of the record of the proceedings in the lower court, properly certified to under the hand and seal of the Circuit Clerk. The transcript filed here shows that the suit in the Circuit Court was between S. H. Peacock, plaintiff, agaifist the Florida Central and Peninsular Railroad Company, defendant, and the certificate thereto states that it contains a correct transcript of the record of the judgment in the case of S. II. Peacock plaintiff, against the Seaboard Air Line Railway. defendant. This ground of the motion is, of course, well taken, and though no motion has been made in this court for leave to withdraw the transcript in order to have it properly certified we would make ah order to that effect (as couhsel orally asked leave to amend), were it not for another objection presented in the rotation. It appears that when the bills of exceptions were made up and settled by the judge, counsel for plaintiff in error presented an assignment of error as a basis1 for making up- the bills, of which counsel for defendant in error had due notice. No assignment of errors was filed with the clerk when the transcript was made up, and none was served on defendant in error or his counsel as required by special rules 2 and 3 for the government of Circuit Courts in the preparation of bills of exception and transcripts of records in civil causes; nor was any notice given that plaintiff in error would rely in the appellate court upon the assignments presented as a guide for making up the bill® of exceptions and that the transcript of the record would be made up on them. Tbe failure to file tbe assignments of error to be relied on in tbe appellate court with the clerk, as a guide for making up tbe transcript, and to serve a copy on tbe opposite party or bis counsel, was a plain violation of the rule for which the writ of error must be dismissed.

Counsel asked at the hearing of the motion that in the event this ground be sustained leave be granted to file the assignment of errors. Tbe time for making up tbe transcript of the record, and the return day of the writ of error have passed, and it is now too late to filé the assignments of error. The motion to' dismiss the writ of error is granted.