Southern States Land & Timber Co. v. Lowe

61 Fla. 775 | Fla. | 1911

Per Curiam.

The appellee appearing specially for that purpose moyes to dismiss the appeal herein on,the ground that the entry of appeal has not been entered in the chancery order book. Section 1911 of the General Statutes of 1906 provides that the entry of appeal shall be filed with the clerk and by him “forthwith entered in the chancery order book, and no other or further notice of such appeal shall be required to be given or served in order to give the Supreme Court complete jurisdiction over the person of the appellee.” Where the entry of. appeal in an equity cause is not recorded in the chancery order, the appellate court does not acquire jurisdiction of the person of the appellee unless there is an appearance by the appellee or some action taken by him or on his behalf that amounts to an appearance and a recognition of the jurisdiction of the court over his person in the particular cause.

Special Rule 4 of the Supreme Court Rules authorizes the appellee to file a cross assignment of errors in a cause, and if this is done it is in effect an appearance in the appellate court in the cause.

Where it does not appear by the transcript or by other proper evidence that an appeal in an equity cause has been duly entered or recorded in the chancery order book, and the appellee has not appeared in the cause in the appellate court, the appeal will be dismissed. But where the appellee has assigned cross errors in the cause he thereby appears in the appellate court, and as the court then has jurisdiction of the person of the appellee with reference to the cause, the appeal will not be dismissed merely for the failure of the clerk to record the entry of appeal in the chancery order book as he is by the statute required to do “forthwith” when it is filed with him by the appellant.

The appellee by filing cross assignment of errors has appeared in the cause in this court and the motion to dismiss the appeal is denied.