Davidson v. Ford

Buford, J. This appeal is from a judgment of the Circuit Court of the Nineteenth Judicial Circuit of Florida reversing the judgment of the County Judge’s Court denying the probate of a certain will. The appeal from the order of the County Judge was entered and filed for record apparently in vacation. There is certainly nothing in the record here which shows that the notice of appeal was given in open court. For this reason it is contended here that the Circuit Court was without jurisdiction of the person of the appellee named in the notice of appeal. Section 2925 R. G. S., 4644 C. G. L., which is as follows: “If the notice be given in open court, no further notice shall be required; but if it be given in vacation, the clerk or judge of said court shall issue to the appellee a citation, which shall be returnable, and shall be served in like manner and time as writs of sci. fa. ad aud. errors in the cases.” As nothing appears in the record to show that the entry and notice of appeal were made in open court, we must conclude that the Circuit Court was without jurisdiction of the appellees on authority of the opinion and judgment in the case of Comte v. TOale, 24 Fla. 19, 3 Sou. 413, and Fuller v. Burrys, 102 Fla. 1145, 137 Sou. 241; and, therefore, the judgment of the Circuit Court should be reversed. But, inasmuch as the appellees in the court below became appellants here and filed their briefs on the merits in this Court, they have entered a general appearance in this Court which will, upon the remand of the cause to the court below, enable the Circuit Court to proceed the same as if the *272 provisions of Section 2925 R. G. S., 4644 C. G. L., had been complied with. See Fuller v. Burrys, supra; For the reasons stated, the order appealed from should be reversed and the cause remanded with directions that the Circuit Court do now proceed to determine the issues involved in the appeal from the County Judge’s Court to the Circuit Court. It is so ordered. Reversed and remanded. Davis, C. J., and Whitfield, Ellis, Terrell and Brown, J. J., concur.