37 Fla. 358 | Fla. | 1896
Lead Opinion
The defendant in error moves the court to dismiss the writ of error, and to strike the bill of exceptions from the record. The ground of the motion to dis
The second writ of error, the one now sought to be dismissed, issued September 19th, 1895, after the motion was filed to dismiss the first writ, but before the order was made dismissing the same. There was no supersedeas of the judgment of the court below upon' either writ. The question is, ought a second writ of error to be dismissed because issued while a prior one was pending, when the motion is made for that purpose after the prior writ had been properly dismissed by the order of the court ? Authority upon the same state of facts as this case is extremely scarce. ISTo case of the precise kind was pointed out to us by the counsel of either party, and in our investigations we have discovered only two, which are referred to in the course of this opinion. Authority is abundant upon the.general question of the effect of bringing two suits upon the same cause of action, and under what circumstances the suit last brought should abate. As a general rule, the law presumes that a single cause of action can be tried and determined in one suit, and will not permit a plaintiff to maintain more than one action against the same party for the same cause at
The principles above stated have reference to suits generally. Are they applicable to. writs of error ? We think so. Our practice assimilates writs of error to other suits. A writ of error is.in the nature of a
There is no force in the contention that by the first writ of error the record was so removed into this court that there was nothing in the court below for the second writ to act upon. A writ of error without supersedeas does not remove the record from the court below in the sense that the lower court loses any control over it, or power to enforce the judgment upon which the writ is taken. Powell on Appellate Proceedings, p. 103; McJilton vs. Love, 13 Ill. 486, text 494, S. C. 54 Am. Dec. 449. Neither can it be said that the first writ of error exhausts the power of this court over the subject-matter. A second appeal or writ of error is allowed in this State when sued out within the statutory limitation, where the first has been dismissed for irregularity or want of jurisdiction. Benbow vs. Marquis & Co., 17 Fla. 441; Harris vs. Ferris, 18 Fla. 81.
The cases previously referred to, and the only ones which we have seen where the question arose as to whether the principles above stated as applicable to
The motion to strike the bill of exceptions is upon two grounds: The first is that “no bill of exceptions was made up and signed during the term of the court at which the trial was held, and the transcript of the record does not show that any special order was made and entered in the minutes allowing further time.” The bill of exceptions recites that it was proposed to the Judge “on the 19th of April, A. D. 1895, * * by virtue of a special order herein made,” and that on said date plaintiffs in error did “request him to-sign the same.” The Circuit Judge adds that “this bill of exceptions was presented to me on the afternoon of April 19th, 1895, and taken away by attorney for plaintiff and delivered to the attorney for claimant to look over; and on this day, to-wit: July 3d, 1895, attorneys for parties appeared before me and settled same, whereupon I have this day signed same as of the day presented, court having adjourned March 22d, and thirty days additional having been granted plaintiffs to prepare, present and settle their bill of exceptions.” The absence from the transcript of the order allowing time to present the bill of exceptions is not sufficient to dismiss the bill of exceptions, as the bill
The second ground of the motion to strike is, that “the certificate of the Judge shows that the plaintiffs •did not comply with the special order allowing further time.” The certificate in question is quoted above. It shows thirty days’ further time was allowed. The •court at which the order was made adjourned March 22d, 1895. The bill was presented for signature April 19th, which was within the time allowed. The bill of exceptions being presented in proper time, it was not essential that it should have been actually signed upon the day it was presented. Mayo vs. Hynote, 16 Fla. 673. The taking of it away by the attorney of the plaintiffs in error to be delivered to the attorney of the defendant in error is necessarily presumed to have been done with the consent of the Judge and of the parties, and it was proper to finally settle and sign it July 3d, 1895, as of April 19th, 1895; when it was presented for signature. Mayo vs. Hynote, supra.
The motion is denied.
Dissenting Opinion
[dissenting).
I have been unable to get my consent to the views expressed in the foregoing opinion as to the effect of suing out the second writ of error while the first one was pending in this court, and effectual in every respect so far as the bringing of the case and the parties
Cases at law can, under the Revised Statutes, only be brought to this court by writ of error, and the mode-of bringing them here is specifically pointed out by statute. At common law a writ of error issued out of a court of competent jurisdiction directed to a judge of a court of record, in which a final judgment had been rendered, commanding in some eases that the judge himself examine the record; in others that the record be sent to another court of appellate jurisdiction, to be there examined, in order that some alleged error in the proceedings may be corrected. The object of the writ is to review and correct an error of law, which was amendable at common law, or cured by the statutes of Jeofails. It is said that “it is .considered a
In the present case the failure of the first writ of error to accomplish its object is attributable solely to the laches of plaintiffs in error, and to permit the use of a second writ will not only enable the parties to postpone the case to a further term of this court, but to take advantage of their own laches.