LUCINDA ADAMS, APPELLANT,
v.
SETZER'S SUPER STORES, APPELLEE
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The court addressed appellee's motion to dismiss the appeal for appellant's failure to pay costs taxed in the trial court before instituting the appeal, as required by Florida Appellate Rule 3.2. Although the court found a waiver based on appellee's prior delay in raising the issue, it required appellant to cure the default by paying the taxed costs within ten days or face dismissal.
Although appellee's delay in raising the procedural defect constituted a waiver of the right to have the appeal summarily dismissed, the appellant must still cure the default by paying the taxed costs plus interest within ten days, or face dismissal of the appeal.
“While the failure of appellee to present the subject of this motion at a prior time must be held to constitute a waiver of the right to have the appeal summarily dismissed, such acquiescence does not operate to invest the defaulting appellant with a right to maintain the appeal without curing the default.”
Establishes that appellee's delay in raising the cost payment issue waived summary dismissal rights, but did not excuse appellant's obligation to comply with the rule
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Join FLexlaw to unlock all legal intelligenceAppellant Adams appealed a judgment in a case against Setzer's Super Stores. Costs were specifically taxed against the appellant in the trial court. T…
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We consider appellee’s motion to dismiss this appeal for failure of the appellant, plaintiff below, to comply with Florida Appellate Rule 3.2, subd. f, 31 F.S.A. by paying, prior to the institution of the appeal, the costs specifically taxed against appellant up to the time the appeal was taken >or by assigning the taxation of costs as error and superseding the judgment specifically taxing same.
This appeal has been before this court on at least two previous occasions in connection with motions of appellee addressed to procedural matters, none of which involved the subject of the present motion, though at all times the facts obtained upon which this motion is based. Except for the disposition of this motion, this appeal is ripe for final hearing. While the failure of appellee to present the subject of this motion at a prior time must be held to constitute a waiver of the right to have the appeal summarily dismissed, such acquiescence does not operate to invest the defaulting appellant with a right to maintain the appeal without curing the default.
In open court Horace E. Hill, Esquire, counsel for appellant, announced that if permitted so to do, he would within a short day to be fixed by the court cause such costs to be paid.
An order will be entered allowing the appellant ten days from the date of this decision in which to pay the costs by the trial court specifically taxed against plaintiff in this cause, together with interest thereon, as provided by Section 59.09, Florida Statutes, F.S.A., and to file in this court a certificate to such effect, failing which the appeal to be dismissed.
CARROLL, DONALD K, C. J., and STURGIS and RAWLS, JJ., concur.
On the Merits
Affirmed.
CARROLL, DONALD, C. J, RAWLS, J., and McLANE, Associate Judge, concur.
On the Merits
PER CURIAM.
Affirmed.
CARROLL, DONALD, C. J, RAWLS, J., and McLANE, Associate Judge, concur.
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Abrahams v. Mimosa Co., Ltd., 174 So. 2d 82 (Fla. 3d DCA 1965)…oss-assignments, cross-directions, entering into stipulations or filing his brief. See: Berg v. New York Life Insurance Company, Fla.1955, 81 So. 2d 630; Frisch v. Gabriel, Fla.App.1961, 134 So. 2d 545; Adams v. Setzer’s Super Stores, Fla.App. 1962, 145 So. 2d 893. Therefore, if these cases hold that the appellee may waive his ground for dismissal of a cause at this early stage of an appellate proceeding [such as the time for filing cross-directions] then certainly the appellant must be in default by failing…