41 Fla. 143 | Fla. | 1899
On April 21, 1898, in a chancery cause then pending in the Circuit Court of Hernando county between appellee as complainant and appellants as defendants, a decree of foreclosure was rendered, from which appellants entered their appeal returnable June 14th, 1898,
On September 2, 1898, the appellants attempted to take another appeal from the same' decree and we quote from the transcript of record filed here all entries relating to this second appeal as follows: “On the 2nd day of September, 1898, defendants filed their entry of appeal in words and figures following: And now on this the 2nd day of September, A. D. 1898, come the defendants in the cause above named by T. S. Coogler & Son, their solicitors, and apply for and enter their appeal from the judgment and decree rendered in said cause on the 21st day of. April, A. D. 1898, to the Supreme Court of the State of Florida, to be held at Tallahassee, commencing on the second Tuesday in January, A. D. 1899. T. S. Coogler & Son, Solicitors for Appellants. Filed September 2nd, 1898, and entered in Chancery Order-Book page 28. Frank E* Saxon, Clerk, by S.. A. Wilson, D. C.”
Appellee now moves to dismiss the first appeal because of failure to file transcript, abstracts and briefs; and appearing specially moved to dismiss the second appeal upon grounds hereinafter more particularly noticed.
I. If an appeal is taken within a period less than thirty days from the first day of the next succeeding term of this court, it must be made returnable to a day in such term more than thirty and not more than fifty days from the date of such appeal. If in such cases the appeal be made returnable to the first day of the term it is entered in direct violation of law and confers no jurisdiction upon this court. Spencer v. Travelers’ Insurance Co., 39 Fla. 677, 23 South. Rep. 442; Fleming v. Flem
II. The second appeal is sought to be dismissed upon the ground that this court has not acquired jurisdiction over the person of the appellee, and in support of this position it is contended, (1) that the transcript of the record contains no copy of the certificate of the clerk showing- the date, and in what book and upon what page, the notice of appeal was entered by him; (2) that the entry of appeal previously quoted from the transcript, even if recorded, was insufficient to give this court jurisdiction of the person because, (A) it is returnable to a term of this court not authorized by law; and (B) it fails to show the names of the parties to the decree from which it was taken, or the cause in which it was entered.
1. Under the law as it now stands in this State, a proper entry or notice of appeal duly filed gives this court jurisdiction of the subject-matter, and the record of such entry or notice when duly made gives it jurisdiction of the person of the appellee. Chapter 4528, laws of 1897, which requires the entry or notice of appeal to be filed with and “forthwith entered by” the clerk “in the chancery order book” as a substitute for the former citation on appeal required to be issued and served upon an appellee, does not prescribe the method by which the
2. (A) As the second appeal was taken September 2, 1898, it was properly made returnable to the first day of the next succeeding term of this court, the second Tuesday in January, 1899. Spencer v. Travelers’ Insurance Co., 39 Fla. 677, 23 South. Rep. 442. Appellant argues that an appeal must be taken to the next succeeding term after the entry of the decree appealed from, but there is nothing in our statutes to warrant such a construction. An appeal may be entered at any time within the statutory limitation of six months, and the return day must be either to the first day of, or in certain cases to a day within, the next succeeding term of this court after the entry of appeal; not the next succeeding term after the entry of the decree. The fact that appellants had attempted to appeal from the same decree to a prior term did not affect their right to' enter the second appeal, because as we have shown the first appeal was a nullity and ineffectual for any purpose. American Finance Co. v. Perrine, 40 Fla. 412, 24 South. Rep. 484; Glasser, Kuder & Ottensoser v. Hackett, 37 Fla. 358, 20 South. Rep. 532.
2. (B) The entry of appeal which we have quoted from the transcript fails to identify the cause wherein the decree appealed from was entered, and fails to state the names of the parties taking the appeal, or those against whom it is taken. The statute, Chapter 4528, laws of 1897, does not prescribe the form of the entry or notice of appeal which it requires to be recorded, but its object being to substitute for the former practice of giving personal notice by citation or in open court, a species of constructive notice by recording upon a public record the notice or entry of appeal, it clearly contem