27 Fla. 205 | Fla. | 1891
Appellants sued appellees in ejectment. The jury rendered a verdict that the defendant was not guilty, and on the same day, March 25th, 1889, at the spring term of the Circuit Court of Marion county, judgment was entered accordingly. A motion for a new trial was made, and on April 6th an order overruling it was entered, and sixty days were allowed for the presentation of a bill of exceptions. The term anjourned sine die this day. ISTotice of appeal was given and entered at the same time, but afterwards, on the 29th of the same month, another entry of appeal to the June term, A. D. 1889, of this court was made, and followed by citation. On May 2d an appeal bond was filed, the Clerk of the Circuit Circuit approving the same. A bill of exceptions was signed by the Circuit Judge June 4th, 1889, and filed in the clerk’s office on the next day. The' transcript of the record now before us, was certified to by the clerk on the 7‘A\ o" -he same month, and it bears a formal certificate of the clerk,
On January 2d, 1891, appellees served notice on appellants that they would move this court on the 14th of the same month to dismiss the appeal on the following grounds: 1st. That the costs of appeal were not paid within the time required by law. 2nd. There is no evidence of authority from the appellants to M. L. Payne as their agent to sign the bond in appeal in said cause, and that there was no such authority in fact.
The Act of Februaray 12th, 1830, sec 5, p. 447, Thomson’s Digest, sec. 3, p. 840, McClellan’s Digest, provides that no appeal or writ of error shall hereafter be granted to the original plaintiff in any suit unless such plaintiff shall first pay all costs which may have accrued in and about the suit up to the time when the appeal or writ of error is prayed; and also enter into bond with one or more securities in a sum sufficient to cover all costs which may accrue in the pros-' ecution of the appeal or writ of error, conditioned to pay the same if the judgment or decree of the court shall he affirmed.
Appellees in support of their motion rely upon the above transcript, certificate and papers as to the pay
The appellant has filed an affidavit of Bullock, made March oth, 1891, stating he was such deputy clerk during the first six months of the year 1889, and that he remembers the payment of the costs in this cause, and the circumstances connected therewith; that the cause having been long pending, and many steps having been taken, and numerous witnesses having been summoned by both parties at successive terms of the court, the making up of the cost bill was a task somewhat complicated and difficult; that the plaintiff’s attorney, R. L. Anderson, stood ready at all times after said judgment was rendered in said cause to pay the costs in accordance with law, and requested that the said costs be taxed, and the amount ascertained, that the amount might be paid by plaintiffs; that the certificate of the payment of costs endorsed upon the appeal transcript was so éndorsed thereon by affiant at the request of appellant’s counsel, to serve as evidence of such payment; that in fact, the payment of such costs was made prior to that date, and that if the payment was made after the time limited by law, such delay was due to no default or negligence of appellants, who paid the same as soon as they were taxed by the clerk and the amount ascertained. '
This action being one at law, the statutory provisions set out above apply to it, though they do not apply to cases in equity. Smith vs. Curtis, 19 Fla., 786. The only other cases construing this act are those of Union Bank, for the use of Morrison vs. McBride, 2 Fla., 7, and Gordon vs. Camp, Ibid, 23, and Hall vs. Penny, 13 Fla., 593. In the first of these cases the only showing as to the payment of costs was the statement of counsel for appellant that he did not know that the costs had been paid, but thought it possible that pursuant to a general understanding between the clerk and himself the costs had been charged to the latter; and the reason for not giving bond was that the real plaintiff resided in England, too far away to have been heard from since the trial. In the second case no bond had been given when the writ was granted, but after-wards an illegal bond, one signed by the attorney at law in the name of plaintiffs in error, was filed, and one hundred dollars were deposited -with the clerk as “security on the bond.”
Hall vs. Penny was an appeal by an unsuccessful plaintiff:, the term of the court adjourning and the appeal bond not being given or approved within the ten days thereafter, then allowed by law. The appeal was dismissed, the court holding that all the steps necessary to make the appeal effectual must be complied ■with, within the time prescribed by the act, and that the court was not authorized to enlarge the statute or dispense with a compliance with it, and that the giving and approving of a bond was one of its prerequisites.
There is no doubt but that the failure of the party desiring to appeal, to do, within the time prescribed by law for taking the appeal, anything which he may do of himself or independent of any of&cial action, forfeits the appeal. Benbow vs. Marquis, 17 Fla., 236;
In Gordon vs. Camp, Hall vs. Penny, and Benbow vs. Marquis, supra, the giving of the bond was not dependent upon any previous action of any officer. What would have been the effect if, in either case, the bond had been properly tendered and there had been an omission or delay in the judge or clerk to act on it until after the statutory limitation had passed, was not. involved nor passed upon. The language of judges is to be confined in the effect as an adjudication to the facts of the case under consideration. In Morrison vs. McBride, supra, it does not appear that there had not-been a taxation of the costs; the point is not even suggested, and it must be assumed that they had been taxed and there was no such obstacle to their payment.
' The payment of the costs before the expiration of the thirty days after the adjournment of the term, the period allowed for taking an appeal, (Barrs vs. Creary, 23 Fla., 61,) is dependent upon the performance of an official duty by the clerk, and the Legislature in imposing this obligation upon an appellant contemplated and implied the previous performance of the clerk’s.
FTo consideration has been given to the affidavits objected to by counsel for appellees, in reaching the above conclusion. Of course we have nothing to do with the merits or history of the litigation, on this motion.
The extension of time for settling a bill of exceptions has nothing to do with taking an appeal further than the making of a record of matters in pais for the appellate court to act on; it has no effect to extend the time prescribed by the statute for appealing. Lewis, Executor vs. Meginniss, 25 Fla., 589, 591-92; 6 Southern Reporter, 169; Cook vs. Cook, 104 Ill., 98.
The second ground of the motion is met by the appellants by the production of a power of attorney to
The motion is denied and it will be ordered accordingly.