38 Fla. 139 | Fla. | 1896
Gfeorge F. Broughton, J. 1ST. C. Stockton and C. F. Warriner have filed two motions to dismiss the appeals entered in' this cause, one directed to the appeal entered by the Railway k Navigation Company, and the other to the appeal entered by the Trust Company, Kendrick and Russell. Application has been made on behalf of Kendrick and Russell to dismiss the appeal as to them, and the granting of this application, which is done, disposes of all questions as to the appeal in their names.
The first three grounds of the motion directed to' the appeal entered by the Railway Company are substantially that the entry is by said company in the name of all the defendants, and no other name than that of the company appears in the entry; it does not appear that all the defendants were not willing and
The fourth ground is, that no assignment of errors was filed in the clerk’s office within the time required by law, “nor otherwise than in and by the said J., M. & P. Railway & Navigation Company alone. The appeal was entered on the 20th of January, 1896, and on the 30th of the same month assignments of errors were filed both by the Railway Company and the Trust Company, setting up the alleged grounds of error upon which they severally relied. The assignments of error were filed in the proper clerk’s office within the time prescribed by Special Rule 4, regulating appeals in chancery, that is, within ten days after the appeal was entered. Crawford vs. Peder, 27 Fla. 523, 8 South. Rep. 642. It is contended in the brief that the fourth ground to dismiss is, that no assignment of errors was filed within time by appellants except by the Railway Company. As a matter of fact assignments of errors were filed by both appellants on the same day. We do not understand the contention to be that the assignment of errors is fatally defective because not jointly made, but if such be the purpose of this ground of the motion, it is not good. The rules do not prevent a severance as to assignments of errors by appellants in perfecting an appeal to this court.
The fifth ground of the motion is, that citations have not been issued, served and returned in the cause. In support of this ground of the motion counsel cite
The only other ground of this motion requiring consideration is, that no copy of the record or abstract of the record, accompanied by an assignment of errors, as required by the rules of this court, has been served on the moveants by appellants. There is here on file in the cause a joint receipt signed by counsel for all the moveants, as follows, after giving the style of the
It is conceded by the Railway Company that no copy of the abstract of the transcript has been- served by it, and application is made along with this motion for leave to prepare and file copies as required by the rule. The reasons assigned to the court for a failure to prepare and serve the abstract are deemed sufficient to authorize it to be now done; and counsel will have
The fourth ground of the motion to dismiss the appeal as to the Mercantile Trust Company on account of the joinder in the appeal' of Kendrick and Russell is disposed of by the dismissal as to them.
■ The first and fifth grounds — that no abstract of the record had been served upon either of the appellees, and no assignment of -errors was filed in the clerk’s office where the appeal was entered within the time required by the rules of this court — are without foundation in fact. The evidence before us shows that an abstract of the record was served by the Trust Company within the time required, and from the transcript it appears that an assignment of errors was duly filed in the proper clerk’s office.
The second ground of the motion is, that no citation was issued, served and returned in the cause within the time required by law. There is on file here an ■original citation issued by the Clerk of the Circuit Court on the 11th day of February, 1896, notifying George F. Broughton, John N. C. Stockton, Joseph Hathorne, Charles F. Warriner, surviving partner of Hungerford & Warriner, John S. Fair head, Henry C. Strawn and Benjamin R. Powell, partners under the firm name of Fairhead, Strawn & Co., and the Jacksonville, Mayport, Pablo Railway & Navigation Company, that the Mercantile Trust Company, William J. Kendrick and James A. Russell had taken an appeal from the judgments, orders and decrees of the Circuit Court, béaring date July 22d, 1895, as well as from all interlocutory orders made in the cause, to the June term, 1896, of the court, to be held on the second
The third ground of the motion needs no discussion, as what has been said in relation to the appeals by the parties disposes of it.
The sixth and only remaining ground of the motion is, that the appeal was entered and taken more than six months after the entry of the final decree against the Trust Company. On the 17th of November, 1893, a decree pro eonfesso was entered against the Trust Company, and on the 6th of March, 1894, it was decreed on the report of testimony by the master that complainant have the relief prayed in his bill, and the cause was referred to the master to take and state an account of what was due complainant and any other creditor of the Eaihvay Company who wmuld come in and prove his claim. It was further ordered that the master report to the court the order in which the claims, w^hich he found due from said company to the several creditors, were entitled to share in the proceeds of the sale of the property of the company. The master reported on the 6th of April, 1895, various claims as due from the company as lien demands and first mortgage bonds, and also settled the priority of liens and claims allowed. This report, with some modification, was confirmed on the 21st of June, 1895, and on the 22d of the following month a decree was rendered ordering a, sale of the railroad, its rolling-stock, machinery and franchises to pay the claims reported by the master and allowed by the court. There
The object of the present motion, is to dismiss the appeal entered by the Mercantile Trust Company, because it was entered more than six months after the final decree was rendered against it. The first decree appealed from in the entry made is the one entered on the 22d day of July, 1895, within six months from the entry of the appeal, and then follows an entry from all the interlocutory decrees in the cause. We do not propose on this motion to go into a consideration of what was the final decree in the cause, or the characteristics of a final decree. It was clearly the purpose of the act of 1893 to limit an appeal from a final decree to six months, and it may be conceded that a party has no right to assign errors on a decree from which he has no right to appeal, and that if such assignments are made the • opposite party has the right to move to dismiss them, or object to their consideration in this court. Without considering the right of the Trust Company to assign errors on decrees or orders made prior to July 22d, 1895, it is evident that
An order will be entered denying the motions.