Griffith v. Henderson

Whitfield, J.: The entry of appeal and the endorsement thereon in this cause are in the following words: “Thomas W. Griffith, the respondent in the above entitled cause, hereby applies for and enters an appeal in the above entitled cause, from the order or decree herein made and rendered in this cause on the 5th day of May, A. D. 1906, to the Supreme Court of Florida, at its term, beginning on the second Tuesday of June, A. D. 1906. The Clerk of said court will forthwith record this entry of appeal in the Chancery Order Book of the said court, and endorse on the back hereof the time and page of such entry.” “Filed and recorded in chancery order book at page 128 [509] this May 17th, 1906. W. L. Lockey, Clerk Circuit Court.” If an appeal is taken within a period of less than thirty days from the first day of the nest succeeding term of this court, it must he made returnable to a day in such term more than thirty days and not more than fifty days from the date of such appeal. If in such cases the appeal be made returnable to the first day of the term it is entered in direct violation of the law and confers no jurisdiction upon this court. Garrison v. Parsons, 41 Fla. 143, 25 South. Rep. 336; Spencer v. Travelers' Insurance Co., 39 Fla. 677, 23 South. Rep. 442. The appeal in this case was entered May 17th, 1906, and made returnable' “to the Supreme Court of Florida, at its term beginning on the second Tuesday of June, A. D. 1906.” This language makes the appeal returnable to the first day of the June term, which by law begins on the second Tuesday in June. Swain v. London & Lan. Fire Ins. Co., 49 Fla. 397, 38 South. Rep. 3. The second Tuesday of June 1906, was the 12th day of the month, and only 26 days from May 17th, the date of the entry of the appeal. The appellee lias appeared in this court by filing briefs on the merits a nd has made no motion to dismiss the appeal because of the defective entry of appeal, but since the entry of appeal is void and confers no jurisdiction on this court of the subject matter of the cause, the appearance of the appellee cannot give jurisdiction of the subject matter. This court must have both the subject matter and the parties before it in order to give it jurisdiction of an appeal. The appearance of the appellee would give the court jurisdiction of the person if the cause of action were here by a valid entry of appeal. As the entry of appeal is void and gives no jurisdiction to this court of the subject matter of the appeal, the appeal must be dis [510] missed even though appellee has made no motion for that purpose. It is so ordered. Shackleford, C. J., and Cockrell, J. concur; Taylor, Hocker and Parkhill, JJ., concur in the opinion.