SOUTHERN STATES LAND AND TIMBER COMPANY, APPELLANT,
v.
JOHN LOWE, JR., APPELLEE
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The Florida Supreme Court addressed whether an appeal should be dismissed when the clerk failed to record the entry of appeal in the chancery order book, as required by statute. The court held that while proper recording is ordinarily required for jurisdiction over the appellee's person, a cross assignment of errors by the appellee constitutes an appearance that cures this defect.
An appeal will not be dismissed for the clerk's failure to record the entry of appeal in the chancery order book when the appellee has filed a cross assignment of errors, because such filing constitutes an appearance in the appellate court that establishes the court's jurisdiction over the appellee's person.
“Section 1911 of the General Statutes of 1906 provides that the entry of appeal shall be filed with the clerk and by him "forthwith entered in the chancery order book, and no other or further notice of such appeal shall be required to be given or served in order to give the Supreme Court complete jurisdiction over the person of the appellee."”
Establishes the statutory requirement for recording the entry of appeal and the purpose of this requirement—to vest appellate jurisdiction.
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Join FLexlaw to unlock all legal intelligenceSouthern States Land and Timber Company appealed a chancery court decision. The appellee moved to dismiss the appeal, arguing that the entry of appeal…
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Per Curiam.
The appellee appearing specially for that purpose moyes to dismiss the appeal herein on,the ground that the entry of appeal has not been entered in the chancery order book. Section 1911 of the General Statutes of 1906 provides that the entry of appeal shall be filed with the clerk and by him “forthwith entered in the chancery order book, and no other or further notice of such appeal shall be required to be given or served in order to give the Supreme Court complete jurisdiction over the person of the appellee.” Where the entry of. appeal in an equity cause is not recorded in the chancery order, the appellate court does not acquire jurisdiction of the person of the appellee unless there is an appearance by the appellee or some action taken by him or on his behalf that amounts to an appearance and a recognition of the jurisdiction of the court over his person in the particular cause.
Special Rule 4 of the Supreme Court Rules authorizes the appellee to file a cross assignment of errors in a cause, and if this is done it is in effect an appearance in the appellate court in the cause.
Where it does not appear by the transcript or by other proper evidence that an appeal in an equity cause has been duly entered or recorded in the chancery order book, and the appellee has not appeared in the cause in the appellate court, the appeal will be dismissed. But where the appellee has assigned cross errors in the cause he thereby appears in the appellate court, and as the court then has jurisdiction of the person of the appellee with reference to the cause, the appeal will not be dismissed merely for the failure of the clerk to record the entry of appeal in the chancery order book as he is by the statute required to do “forthwith” when it is filed with him by the appellant.
The appellee by filing cross assignment of errors has appeared in the cause in this court and the motion to dismiss the appeal is denied.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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McJunkins v. Stevens, 88 Fla. 559 (Fla. 1925)…missed (Whitted v Abbe, 54 Fla. 669, 45 South. Rep. 478; Stone v. State, 68 Fla. 248, 67 South. Rep. 163) unless the appellee appears generally in the cause in the Appellate Court or duly waives notice. See Southern States Land & Timber Co. v. Lowe, 61 Fla. 775, 55 South. Rep. 73. An appeal or Writ of Error that does not include all the necessary parties appellee in the cause on appeal will be dismissed. (Ferris v. Ferris, 43 Fla. 358, 31 South. Rep. 345; Buck v. All Parties, 86 Fla. 86, 97 [*570] South. R…
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Garner v. Garner, 83 Fla. 143 (Fla. 1922)…ers that do not go to the jurisdiction of the court over the appellee and such grounds amount to a general appearance in the cause in this court. Oppenheimer v. Guckenheimer, 34 Fla. 13, 15 South. Rep. 670; Southern States Land & Timber Co. v. Lowe, 61 Fla. 775, 55 South. Rep. 73; Henry Vogt Mach. Co. v. Milton Land & Investment Co., supra., Williams v. La Penotiere, 26 Fla. 333, 7 South. Rep. 869. The transcript of the repord is properly authenticated for filing in this court. Motion to dismiss denied.…
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Henry Vogt Mach. Co. v. Milton Land & Inv. Co., 74 Fla. 116 (Fla. 1917)…First National Bank, Cora Lee Wilson and Satyra W. Martin, has filed in this cause a written consent and joinder in a suggestion of diminution of the record which brings the said defendants into court. See Southern States Land & Timber Co. v. Lowe, 61 Fla. 775, 55 South. Rep. 73. Motion to dismiss denied. Browne, C. J., and Taylor,. Ellis and West, J. J., concur.…
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