DaCosta v. Dibble

I’er*Ctria.u. - A ft o»* the tiling of the mandate of this court in the Circuit Court upon the reversal of the'decree (DaCosta, Executor, v. Dibble et al., 40 Fla. 418, 24 South. Rep. 911.) an order was entered overruling the plea and leave granted to defendants to file an'answer. Thereupon an answer — 227 — was filed, to which there was a general replication, followed by testimony taken before a master, and upon a final hearing a decree -was entered July 25th, 1901, dismissing the bill at complainant’s cost. The transcript filed here shows that complainant on the twenty-first day of January, 1902, entered an appeal from the decree dismissing the bill to the first day of the present term of this court, and a transcript, made up under directions filed subsequent to the entry of the appeal, was filed here June 30th, 1902. ' In October last counsel for appellees made a motion in this court to dismiss an appeal entered in this cause by complainant on the eighteenth day of October, 1901, to the first day of the following January term, because no transcript of the record thereunder had been filed in this court, and also to dismiss the appeal entered on the twenty-first day of January, 1902, because when taken, there was a prior appeal pending in this court and not properly dismissed. From certified copies of record entries filed on the hearing of the motion it appears fhgr complainant on ihe eighteenth day of October, 190.1, duly entered an appeal from the decree in the cause 1 o the first day of the January term of this year, and the entry was duly recorded in the chancery order book. Tt also appears that on the twentieth day of January of this year, raid six days after the beginning of the term to which said last mentioned appeal was returnable, counsel for complainant filed a praecipe with the clerk of the Circuit Court in which ¡the decree w'as entered for a dismissal of said appeal, and the clerk entered what purports to he an order dismissing the appeal. The entry of the appeal on October 18th was to the following January term of this court, and being duly entered and recorded was — 228 — effective to transfer to this court the cause for a rehearing on the decree dismissing the bill. Southern Life Insurance and Trust Company v. Cole, 4 Fla. 359; State ex rel. Shrader v. Phillips, 32 Fla. 403, 13 South. Rep. 920; Neubert v. Massman, 37 Fla. 91, 19 South. Rep. 625. The action of the clerk, so far as a dismissal of the appeal is concerned, must be regarded as a nullity, as he is not invested with authority to dismiss an appeal to this court duly entered and recorded. The dismissal of such an appeal must ‘be in the appellate court, and it may be done on the voluntary application of an appellant, or for cause on motion of an 'appellee. The practice and. rules for the government of this court contemplate that appeals to it must be dismissed here. When the court is in session plaintiff's in error or appellants may at any time have a-voluntary dismissal of causes proper to be dismissed, and by rule 24 for the government of this court they may voluntarily dismiss a writ of error or appeal during vacation by filing with the clerk of this court a praecipe signed by the attorney of record in this court, upon payment of the costs of the writ of error or appeal. If the plaintiff in error or appellant fails to file in the Supreme Gourt at the time required by law a duly certified transcript.of the record required, and serve a copy on the opposite party., the cause inay be dismissed under rule 12 for the government'of this court, and likewise the cans0 may be dismissed in this court for a failure to file abstracts of the record, or in lieu thereof, copies of the transcript, as provided in rule 20 as amended in January, 1899. We held in American Contract & Finance Co. v. Perrine, 40 Fla.. 412, 24 South. Rep. 484, that a subsequent appeal entered by the same party from the same decree while his — 229 — prior appeal is still pending and effective, is irregular and will be dismissed. In referring to cases holding that under such circumstances the second appeal is a nullity, it was sáid: “without committing ourselves to the proposition that the second appeal is a nullity, as held by these authorities, we are entirely satisfied that it is irregular for a party to enter a second appeal from the sanm decree while his first is still pending and effective, and that because of such irregularity the second appeal ought 0; be dismissed.” The facts under which this ruling'was made were that on the thirtieth day of March, 1898, an a; peal was duly entered of record from decrees made' prior thereto lo the first day of the following January term of this court, and on the ninth of May of that year assignments of error and directions for making up the transcript were filed and copies served on the opposite parties who gave no additional directions. No transcript was shown to have been made up under the directions. On the thirtieth of May appellants, without dismissing their previous appeal, entered and had recorded another appeal returnable to a day within the June term of this court, and under this appeal assignments of error and directions were filed, and. a transcript made up, which was filed in this court on the first day of the June term. lindel the last directions filed by appellant both entries of appeal were incorporated in the transcript. This case clearly holds, and we think correctly, that a subsequent appeal entered by the same party from the same decree while there is a prior pending and effective one is irregular. It was held in Garrison v. Parsons, 41 Fla. 143, 25 South. Rep. 336, that an appeal taken within a period less than thirty days from the first day of a succeeding term of this court returnable to the fir^t day thereof con — 230 — ferred no jurisdiction upon this court, and a subsequent appeal duly taken by the same party from the same decree was permissible. A void appeal does not transfer the cause to this court. Under the former practice of court provided by. statute for taking appeals at lav it was held in Baker v. Chatfield, 23 Fla. 62, 1 South. Rep. 779, that an abandonment of an attempt to take an appeal, or an omission io perfect an appeal by giving the required appeal bond, did not preclude the subsequent suing out of a writ of error, and the use of a bill of exceptions previously made up in the case. However, tinder the statute permitting the appeal, a bond was essential to its effectiveness, and where there is a void or ineffectual appeal a second one, as shown, may be entered. In Glasser v. Hackett, 37 Fla. 358, 20 South. Rep. 532, tbe rule in reference to two suits pending in trial courts was applied to writs of error, and it was held that a motion to dismiss a writ of error because of the pendency of a prior writ of error is in the nature of a plea in abatement and should uot he granted where the first one is wholly ineffectual* to accomplish its purpose, or where it has been dismissed. In that case a writ of error, effectual in every respect, was pending when the second one was sued out to a subsequent term of this court, but the former one had been dismissed by formal order here when' the motion to dismiss the latter ivas made. In the case before us the appeal entered in October, 1901, vais effective tó transfer the cause to this court and -there has never been any dismissal of it, so the principle announced in Glasser v. Hackett, supra, restricted to the fads of the case, does not apply. A party may abandon proceedings under an appeal duly entered by a failure to file the required -transcript of the record, and thereby forfeit his — 231 — right to have the ease reviewed on its merits, and subject it to. dismissal in the appellate court, but should he be permitted, with one appeal duly entered and undisposed of, to pile up another on the same record on the ground that he had, abandoned the first? If so, the appellate court must, in the multiplied cases that may be presented under two effectual appeals, determine what acts will amount to an abandonment in the different cases. Under our practice there is no necessity to clog up and confuse the appellate proceedings in this court by double appeals, mid we are, therefore, of opinion that when an appeal duly entered of redord and effectual in every respect to transfer the cause to this court for review lias been taken, it is irregular for the appellant during the term to widen it is returnable to enter another without dismissing the first, and in the absence of such dismissal before the faring of a motion to dismiss, the motion should be granted. Under this view the motion to dismiss should be granted, and it is so ordered. TAYLOK, C. J., being disqualified, took no part in the decision of this case.