Holland v. Webster

Carter J. In each of these causes, appellee moves to- quash the appeal upon the ground that same is frivolous, without merit, taken against good faith and merely for the purpose of delay. There is nothing before the court tending to- show that the appeals were taken ag'ainst good faith, but it is insisted that they are frivolous and taken merely for delay. The first question to be decided is whether the court will entertain motions to quash appeals upon the ground that they are taken merely for delay before the cause is reached for final hearing in its regular order upon the docket. In the case of Dzialynski v. Bank of Jacksonville, 23 Fla. 44, 1 South. Rep. 338, decided in 1887, it was held that the fact that the appellee claims that the appeal has been taken merely for delay and asks for an assessment of damages for a frivolous appeal under the statute, does not entitle him to have the case heard in motion hour upon a motion to affirm and for damages; that the case should be heard, upon the regular call of the docket, like any other case standing for a hearing on its merits, and the application for damages be submitted on such hearing, and not by motion. The statute referred to in that case was section 13 of the act of February 10, 1832, — 89 — which, as it appears as section 14 p. 842 McClellan’s Digest, reads as follows : “Whenever it shall appear to the Supreme Court that an appeal has been taken merely for delay, the said court may assess damages, not exceeding ten per cent, for said frivolous appeal.” At the time of the decision referred to there was also another statute in force, section 50 Chapter 1096, acts 1861, which, as it appears as section 6 p. 844 McClellan’s Digest, reads as follows: “Courts of error shall have the power to* quash the proceedings in error in all cases in which error does not lie or where they are taken against good faith.” It will be observed that there is nothing in the language of either statute which authorized or required the court to entertain a motion to quash, of dismiss, proceedings by appeal or in error, upon the ground that the same were frivolous or taken merely for delay, or which authorized or required the court to entertain and decide motions to affirm upon that ground, • before the cause was reached for final hearing in its regular order. We are satisfied that in the absence of a statute authorizing motions to quash or dismiss, upon that ground the court would not be required to entertain, and decide such motions before the cause is reached for final hearing. By section 1279 Revised Statutes of 1892 it is provided that “courts of error shall have power to quash proceedings in error in all cases in which error does not lie, or where they are taken against good faith, or merely for delay, and may decree in such case damages against the plaintiff in error not exceeding ten per cent.,” and by-section 1462 of the same Revised Statutes it is provided that “the provisions of law relating to writs of error governing the filing of transcripts of record and proceedings — 90 — thereon,, and filing assignments of errors, the duty of the appellate court in examining the record and giving judgment, in causing execution of its decrees and in quashing writs of error, shall be applicable to appeals in chancery.” According to the plain language of these provisions the court has power to quash proceedings in error or bjr appeal in cases where they are taken merely for delay. The word “quash,” according to Bouvier’s and Tomlin’s Law Dictionaries, means to overthrow or annul, the Century and Webster’s Dictionaries define its meaning at law to be, to abate, annul, overthrow, or make void. These provisions do' not contemplate that proceedings in error or .appeals taken against good faith, merely for delay, or in cases in which error or appeal does not lie, shall remain pending in this court h> be disposed of only when reached for final hearing in regular order. This is evident from the use of the word “quash,” and because it could not have been contemplated that in cases where appeal or error does not lie or where taken against good faith, the parties must await the regular call of a congested docket in order to have such proceedings disposed of. It is true that section 1279 Revised Statutes purports .to be, and undoubtedly was, compiled from the sections of the act of 1832 and 1861 before referred h>, that the act of 1832 had been construed as before stated in the case of Dzialynski v. Bank of Jacksonville and that the act (Chapter 3905, approved June 1, 1889,) providing for commissioners to revise, simplify arrange and consolidate the public statutes of the States, contained a proviso in section 1 to the effect that no changes should be made by them in the phraseology of any statute that had been the subject of judicial decision, by which the construction thereof as established by such — 91 — decision should or could be impaired or affected. But it is equally true that the commissioners were authorized to recommend the passage of such new acts or parts of acts as in their judgment might appear necessary or expedient either in lieu of or in addition to any of the acts so revised and consolidated, that they did in fact in some instances disregard the proviso of section „ 1 already referred to, that all or nearly all of the new acts or parts of acts recommended by them to be passed were embraced in the revision submitted to the legislature for its adoption; that the legislature did enact the revision as prepared by them into law, with certain exceptions not necessary to be noticed, and repealed all existing statutes of a general nature not embraced in the revision, and that this court has in several cases decided that new provisions inserted by the commissioners, and changes of phraseology necessitating a construction different from that formerly placed upon the statute by the court, were valid in the revision as enacted by the legislature. Mathis v. State, 31 Fla. 291, 12 South. Rep. 681; Everett v. State, 33 Fla. 661, 15 South. Rep. 543; Marshall v. State, 32 Fla. 462, 14 South. Rep. 92. The language of the sections of-the Revised Statutes quoted is-plain, clear and unambiguous; the fact that proceedings in error or by appeal are taken merely for delay is distinctly and unequivocally made a ground for quashing the proceedings, and we are constrained to hold that this court must under those provisions entertain and decide motions to quash based upon the grounds stated in the statute, notwithstanding the case has not been reached for final hearing upon regular call of the docket. United States v. Bowen, 100 U. S. 508; Bate Refrigerating Co. v. — 92 — Sultzberger, 157 U. S. 1, 15 Sup. Ct. Rep. 508; Bent v. Inhabitants of Hubbardston, 138 Mass. 99; Pratt v. Street Commissioners of Boston, 139 Mass. 559, 2 N. E. Rep. 675. These are the first cases where the matter has been presented in the shape of a motion to quash, although the court has several times declined to entertain motions to dismiss upon the ground that the appeal or writ of error was taken merely for delay. As the provisions of the Revised Statutes referred to do not provide for motions to dismiss upon that ground, but only for motions to quash, the rulings declining to consider motions to dismiss on that ground will be adhered to. It is claimed that the assignments of error in these cases are so frivolous as to demonstrate that the appeals were taken merely for delay. We are satisfied that it is not the purpose of the statute to require the court upon motions of this character to enter into an examination of or decide doubtful or debatable questions properly raised by the assignments of error, but its purpose is to enable the court to quash proceedings in error or by appeal where the assignments of error are so plainly and palpably without merit as to lead to the conclusion that the proceedings were taken merely for delay. The absence of error in the proceedings must be apparent upon a short and cursory examination of the record, requiring no investigation of authorities, nor argument to show the untenableness of the assignments of error. If there are doubtful or debatable questions of law or fact raised by the assignments of error, the court will not investigate or decide them upon motion<; of this character, but will hold the case for hear in o- in its regular order upon the docket. Dzialynski v. Bank of Jacksonville, 23 Fla. 346, — 93 — 2 South. Rep. 696; Redmpnd v. Donaldson, 35 Fla. 167, 17 South. Rep. 70; Vaught v. Green, 51 Ark. 378, 11 S. W. Rep. 587. Upon motions of this character the party moving will not be heard either orally or by brief, for the reason that the assignments of error must on an examination of the record be so wholly devoid of merit as to require no argument on his part to show their untenableness. The party opposing the motion will, however, be heard orally or by brief in opposition to the motion, and if upon examination of the record and consideration of the argument or brief of the party opposing the motion, the court finds that there is properly presented any question of law or fact as to the proper decision whereof the court entertains a doubt, the court will not enter into a minute examination of that question and the authorities bearing thereon, but will leave the cause to its proper place on the docket for hearing in its regular order. In determining whether the motions to quash should be granted it is proper that we state briefly so much of the facts in each case as will be necessary to an understnding of those assignments of error which have not been abandoned. In each case the bill was filed in the Circuit Court of Duval county, seeking foreclosure of a mortgage executed by Georgia V. Holland and James J. Holland, her husband, and in each case the mortgage was attached to and made part of the bill. The certificates of acknowledgment of these mortgages are in the following language: “Know all men by these presents that I, Georgia V. Holland, wife of the above named James J. Holland, do by these presents, made and executed by me separate and apart from my said husband, and in the — 94 — presence of W. B. Owen, a notary public of the State of .Florida, acknowledge and declare that I did make myself a party to and executed the foregoing mortgage for the purpose of conveying my separate estate, dower, right of dower, title and interest in and to the lands therein described and granted, and that I did the same freely and voluntarily without any compulsion, constraint, apprehension or fear of or from my said husband. In witness whereof, I have hereunto subscribed my name and affixed my seal this 9th day of April, A. D., 1886. (Signed) Georgia V. Holland. (Seal.) State of Florida, ) County of Duval. ) To all whom it may concern, be it known that on this 9th day of April, A. D. 1886, personally appeared before me, ,3, notary public of the State of Florida, the above named Georgia V. Holland, to me well known as the person who executed the foregoing mortgage, and as the wife of the said James J. Holland, who being_at the time separate and apart from her said husband, the said Georgia V. Holland did then and there make and execute the foregoing acknowledgment, her name being with her own hands subscribed and her seal affixed in my presence. Witness my hand and seal at Jacksonville, the day and year above written. W. B. Owen, Notary Public. (Seal.)” “Know all men by these presents that I, Georgia V. Holland, wife of the above named James J. Holland, do by these presents, made and executed by me separate and apart from my said husband, and in the presence of Samuel W. Fox, a notary public of the State of Florida, — 95 — acknowledged and declared that I did make myself a party to and executed the foregoing mortgage for the purpose of conveying and mortgaging my separate estate and interest in and to the. land therein described and granted, and that Í did the same freely and voluntarily and without any compulsion, constraint, apprehension or fear of or from my said husband. In witness whereof I have hereunto subscribed my name and affixed my seal this 24th day of July, A. D. 1889. (Signed) Georgia V. Holland. (Seal.) State of Florida, ) County of Duval, ) To all whom it may concern, be it known that on this 24th day of July, A. D. 1889,, personally appeared before me, a notary public of the State of Florida, the above named Georgia V. Holland, to me well known as the wife oh James J. Holland, and. as one of the persons described in and who executed the foregoing mortgage, who being at the time separate and apart from her husband, the said Georgia V. Holland did then and there make and execute the foregoing acknowledgment, her name being with her own hand subscribed and seal affixed in my presence. Witness my hand and seal at Jacksonville, the day and year above written. Sami. W. Fox, (Seal.) Notary Public, Duval County, Fla.” In each case Georgia V. Holland interposed a plea, to the effect that at the time of the execution of the mortgage attached to the bill she was a married woman; that the property described in the mortgage was her separate statutory property; that the mortgage was void as to her — 96 — because the certificate of the officer who purported to have taken the acknowledgment did not show that she executed the same freely and voluntarily and without fear or compulsion of her said husband, as the statute in such cases required. These pleas were upon argument overruled, with leave to answer. Georgia V. Holland thereupon filed an answer in each case. In the case wherein the mortgage acknowledged before W. B. Owen was sought to be foreclosed the answer alleged that she was a married woman at the time of the execution of said mortgage; that the property described in said mortgage was her separate statutory property; that she denied that any right or interest of hers in said property was transferred, passed or mortgaged by said instrument, or that her legal or equitable rights were in any way affected thereby; that at the time and place she affixed her signature to said supposed deed and made her married woman’s acknowledgment before W. B .Owen, notary public, she was not separate and apart from her husband, James J. Holland; that she and the notary public and Miss Ida Parry, a witness to said mortgage, were in the same room sitting around a small marble top table, and that at no time, not even for a moment, was she separate and apart from her husband with said notary public; that said acknowledgment was untrue, and that _she denied that the mortgage was duly and legally acknowledged' by her. In the other case the answer of Georgia V. Holland alleged that at the time of the execution of the mortgage she was a married woman; that the property described in the bill was her separate statutory property; that the mortgage was void because the certificate of the officer who took the acknowledgment did not show that she — 97 — acknowledged that she executed same freely and with out fear or compulsion of her hu.sband; that she denies that the mortgage was duly acknowledged by her as the statute in such cases required; that at no time did she acknowledge on a separate or private examination before the officer who purports to have taken the acknowledgment that she executed the mortgage freely and without fear or compulsion of her husband. Exceptions were filed to these answers and sustained, with leave to answer over. Georgia V. Holland thereupon filed her amended answer in each case alleging in substance that the mortgage in the bill set up was not effectual and did not transfer her separate estate and right in the mortgaged property, because the official certificate thereto' does not set forth all the requirements demanded by the statute, to-wit: that at the time and place of the execution of said instrument she (Georgia V. Holland) was separate and apart from her husband and that she executed same freély and voluntarily and without compulsion, constraint, apprehension or fear of or from her husband. Complainant in each case moved to strike the answer and for the entry of a decree pro confesso against said defendant upon the ground that the matters set up in the last amended answer had been passed upon and adjudicated by the court in the pleas and answer previously filed in the cause. This motion was granted and a decree pro confesso entered against said defendant for want of answer. Subsequently a decree of' foreclosure was entered in each case from which these appeals were taken. The assignments of error insisted upon in this court in each case are substantially as follows: i. The court erred in overruling the plea of Georgia V. Holland. — 98 — 2. The court erred in sustaining exceptions to the answer of Georgia V. Holland. 3. The court erred in striking the amended answer of Georgia V. Holland and entering decree pro confesso against her., The court is of opinion that under the sections of the Revised Statutes previously quoted as we have construed them, these appeals should be quashed. ■ The mortgages were attached to and made parts of the bills. The certificates of the officers following the written acknowledgments executed by Georgia V. Holland show that she made and • executed such acknowledgments in the presence of officers and separate and apart from her husband. The written acknowledgments so made and executed in the presence of the officers show on their face that the mortgages were acknowledged to have bfefen executed freely and Voluntarily and without compulsion, constraint, apprehension or fear from the husband. The statutes regulating acknowledgments of deeds of married' women conveying their statutory property was fully complied with in these cases in só far as the objections raised by the pleas are concerned, and there is no semblance of error in the rulings on the jileas. Those portions of the answers denying that Georgia V. Holland made her acknowledgment before the officers separate and apart from her husband as certified by the officers presented no defence. The answers do not deny that she made and executed .the acknowledgments purporting to be signed by her attached to the mortgages. The officers certify that these acknowledgments were made and executed by her separate and apart from the husband. It is settled in this State that when a married woman has — 99 — appeared before a magistrate, having signed a deed and acknowledged it, and he certifies a full compliance with the statute, his certificate, except fraud or duress be shown, must be held conclusive of the facts it asserts. Shear v. Robinson, 18 Fla. 379; Hart v. Sanderson’s Administrators, 18 Fla. 103. The answer did not allege that no acknowledgment whatever was in fact made, or any fraud or duress, but simply that she did not make the acknowledgments on an examination separate and apart from her husband. The other features of the answers presented merely conclusions of the pleader which upon a- bare inspection of the mortgages and acknowledgments thereof attached to and made parts of the bills, the execution of which was not attempted to be denied, would appear to be erroneous. We think there is no semblance of error in the rulings on exceptions to the answers. The amended answers presented no new matters of defence. The identical matters presented by them had been presented by the pleas and original answers, and the court had correctly ruled that they presented no defence. In addition to' this, the matter pleaded in this amended answer was a mere conclusion of the pleader, which upon a bare inspection, of the mortgages and acknowledgments thereof attached to and made parts of the bills, the execution of which was not attempted to be denied, would appear to be erroneous. The court was clearly justified in striking out these answers, and as no application to amend was made, it was proper to enter the decree pro confesso. The motion to quash the appeal in each case will be granted.