Gerig v. Diamond Phosphate Co.

Mabry, C. J.: In February, 1895, appellant John J. Gerig filed a bill in chancery against Albert D; Wright and N. B. K. Pettingill; and subsequently other parties, including the Diamond Phosphate Company, by intervention, became parties to the suit. The proceedings in the case are various, and many interlocutory orders were made therein, dating from May 3d, 1895, to September 16th of the same year. All of the parties to the proceedings except the Diamond Phosphate Company felt aggrieved by the orders made in its favor, and on the 25th day of November, 1895, entered an appeal from the orders made, including some fourteen in number. No citation was issued on the appeal until the 11th day of January, 1896, and was made returnable on the 25th day of February of the present year, a day during the January term, 1896, of this court. The transcript of the record was- filed in this court on the 12th of February last, and on that day an order for a supersedeas' was' made'. [340] The Diamond - Phosphate Company has appeared specially and moved to dismiss the appeal: 1st. Because the appeal was entered on the 25th of November, 1895, and the citation was not issued until the 11th of January, 1896, and made returnable to February 25th, 1896. 2d. That the citation was irregular and defective, in that it was not issued as required by Rule 95 governing suits in equity in the Circuit Court. 3d. The appeal having been entered on the 25th of November, 1895, the citation should have been made-returnable to the first day of the present term of this-court, and served twenty-five days before the term. 4th. The citation was not served iqpon appellee as required by law. The appeal must be dismissed without reference to the question of the service of the citation. Section 1461 Rev. Stat. provides that if notice of appeals in chancery be in open court, no further notice shall be required; “but if it be given in vacation, the Clerk of the Circuit Court shall issue to the appellee a citation, which shall be returnable, and shall be served in like-manner and time as writs of scire facias ad audiéndum errores.” Section 1273 directs that the clerk, or judge if there be no clerk, issuing a writ of error shall issue to the defendant in error a scire facias to hear errors, which shall be made returnable • with the writs of error, and shall be served twenty-five days before-the return day. The writ of error must be returnable to the first day of the next succeeding term of the appellate court, unless said first day shall be less than-thirty days from the date of the writ, when it shall be made returnable to a day in such next succeeding term, more than thirty days and not more than fifty days from the date of the writ. Sec. 1270 Rev. Stat. [341] In the case of Driggs vs. Higgins, 19 Fla. 103, decided in 1882, a motion was made to dismiss a writ of error because the scire facias was not served twenty-five days previous to the first day of the term to which the writ of error was returnable, and it appearing that •such was the case, the motion was granted. It also ■appeared in the case that twenty-five days did not intervene between the issuance of the writ of error and the return day thereof, and as application was made to amend the writ. It was said that “the defect in the writ of error is not amendable in the manner desired. The writ as it now stands is void and illegal.” This -court has clearly announced the rule, as will be seen by an attentive reading of the decisions on the subject, that there must be a scire facias or citation returnable with the writ of error or appeal, and that there must be legal service of the scire facias or citation within the time prescribed before the return day of the cause; otherwise the writ of error or appeal fails, and will be dismissed. Tischler vs. Wall, 20 Fla. 924; Knight vs. Weiskopf, 21 Fla. 157; Guarantee Trust and Safe Deposit Co. vs. Buddington, 23 Fla. 514, 2 South. Rep. 885; Williams vs. Hutchinson, 26 Fla. 513, 7 South. Rep. 852; Oppenheimer vs. Guckenheimer, 34 Fla. 13, 15 South. Rep. 670; Christopher vs. Newnham, 34 Fla. 370, 16 South. Rep. 274; First National Bank of Orlando vs. King, 36 Fla. -, 18 South, Rep. 1; Weston vs. Bonney, decided at the present term. Where a writ of error is sued out or ■appeal entered more than thirty days before the next term of this court-, they must be made returnable to the first day of the term, and the scire facias or citation must also be made returnable with the cause to [342] which it relates, and served twenty-five days before-the return day. , In the present case the appeal was entered more than, thirty days before the first day of the present term, and the citation was not only not served twenty-five-days before the return day, but did not issue until the 11th day of January, only three days before such return day, and was made returnable to a day to which, no appeal was returnable. i An order dismissing the appeal will be entered.