Whatever may have been the method of obtaining and effectuating appeals in chancery causes in England or in Florida prior to 1873, (Sec. 2 Enc. Pl. Prac. 209; pages 92 and 108, Fla. Territorial Acts 1832) pursuant to authority conferred by Section 75, Chapter 1096, Acts 1861, Section 3, Chapter 1626, Acts 1868, Sections 2 and 12, Chapter 1938, Acts 1873, now Section 4682, Comp. Gen. Laws 1927, the Supreme Court of Florida adopted May 26, 1873, Chancery Rule 95 which provided that "When an appeal is entered in the circuit court in a chancery cause, the appellant, at the time of entering the appeal, shall apply to the clerk of the circuit court from which the appeal is taken, or upon the filing of the transcript of the proceedings in the Supreme Court, shall apply to the clerk of that Court to issue a citation requiring the appellee or respondent to be and appear at the term of the Supreme Court to which the appeal is returnable to show cause, if any he can, why the judgment should not be reversed. Such citation shall be served and returned as a writ of scire facias ad audiendumerrores upon a writ of error sued out." 14 Fla. Chancery Rules, *page 60.
Sections 1460, 1461, Revised Statutes 1892, contain the following:
"Notice of appeals in chancery may be given orally in open court at the time when the decree is rendered (in which case such notice shall be entered on the *Page 1037 minutes) or thereafter in vacation by filing in the clerk's office a written notice.
"If the notice be given in open court, no further notice shall be required; but if it be given in vacation, the clerk of the circuit court shall issue to the appellee a citation, which shall be returnable, and shall be served in like manner and time as writs of sci. fa. ad aud. errores."
These quoted sections of the Revised Statutes 1892, and Chancery Rule 95 were superseded by the provision of Chapter 4528, Acts 1897, Section 3172, Rev. Gen. Stats. 1920, abrogating citations on appeals in chancery causes, which statute is as follows:
"Notice of entry of all appeals in chancery causes, whether taken in open court or in vacation, shall be filed with the clerk of the court whose order or decree is to be reviewed, and by such clerk shall be 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 to the Supreme Court complete jurisdiction over the person of the appellee, but the record of such entry in the chancery order book shall be taken and held to be sufficient notice to the appellee of the taking of said appeal and of the pendency thereof in the Supreme Court."
Section 4964 and page 4684, Volume 5, Comp. Gen Laws 1927, and notes.
Duly enacted general statutes may regulate the form and service of notice to parties in judicial proceedings provided due process of law is afforded and there is no encroachment upon the powers of the judicial department. *Page 1038
The Constitution gives to the Supreme Court "appellate jurisdiction" in all equity cases, but the statutes prescribe the method by which appellate jurisdiction is acquired, and adversary parties have a right to a due observance of the statutory requirements. Chapter 11890, Acts 1927, Sections 4635-6, Comp. Gen. Laws 1927, must be so interpreted as not to dispense with any requirement that is essential to due process of law or to the jurisdiction of the appellate court over the subject matter and the parties in a cause, or to in any way encroach upon the judicial power conferred upon the courts by Articles II and V of the Constitution. See Providence S. B. T. Co. v. De Vita, decided at this term. See also Trustees v. Bailey, 10 Fla. 238; Ruff v. G. S. F. Ry. Co., 67 Fla. 224, 64 So. R. 782; Spafford et al. v. Brevard County et al.,92 Fla. 617, 110 So. R. 451; State ex rel. Cartmel v. The A. C. S. Co. et al., 84 Fla. 123, 92 So. R. 871, as to legislative encroachments upon the powers of the judicial department.
"Chapter 4528 Laws, approved May 7th, 1897, entitled: 'An Act abrogating citations on appeals in chancery causes from the circuit to the Supreme Court, and making the record of entry of such appeals notice in such cases,' abrogates the former practice of giving oral notice of appeals when taken in open court, and of the issuance and service on the appellee of a citation in appeals taken in vacation, and makes the record of entry of appeal in the chancery order book of the circuit court the notice, and the only notice, to the appellee of the taking and pendency of the appeal in the Supreme Court, and of the transfer of the cause to this Court for re-examination. Such recording of the entry of appeal is jurisdictional, and is absolutely indispensable in all chancery appeals, to give to the appellate *Page 1039 court jurisdiction over the parties. The statute does not permit recognition of any substitute for such prescribed record, nor will it permit such record to be dispensed with. The statute, however, does not preclude waivers of notice and voluntary appearances in the appellate court." Chamberlain v. Finley, 40 Fla. 91, 23 So. R. 559; State ex rel. v. Canfield et al., 40 Fla. 36, 23 So. R. 591.
"In order for the Supreme Court to obtain jurisdiction over the appellees by reason of the record of the entry of appeal, the entry as recorded in the chancery order book must be sufficiently full and explicit to advise the parties entitled to notice, as well as the appellate court, that an appeal has been taken by definitely named parties against definitely named persons."
Garrison and Barnett v. Parsons, 41 Fla. 143; 25 So. R. 336; Alston v. Rowles, 13 Fla. 110.
"Filing in the office of the clerk of the circuit court of a notice of entry of appeal, duly executed and in proper form, is sufficient to give the appellate court jurisdiction of the subject matter of the cause, but the due entry thereof in the chancery order book of the circuit court, or an effectual waiver or general appearance by the appellee in the appellate court, is necessary to give the appellate court jurisdiction over the person of appellee."
Long et al. v. Sphaler et al., 89 Fla. 499, 105 So. R. 101. See also Bauknight et al. v. Sloan Co. et al., 17 Fla. 281; Price et al. v. Horton, 76 Fla. 537, 80 So. R. 305; Buck v. All Parties, 86 Fla. 86, 97 So. R. 313; Florida Chancery Jurisprudence, page 718, as to form of entry of appeal. *Page 1040
Chapter 11890, Acts 1927, effective June 6, 1927, provides that:
"No writ of error or appeal shall be dismissed for want of proper parties if the writ of error or notice of entry of appeal recorded within the time allowed by law shall identify with reasonable certainty the judgment or decree sought to be reviewed. In case of numerous parties it shall be sufficient designation to identify the cause by its usual title in the inferior court and the abbreviation et al. may be used to designate parties other than those expressly named. To this end the proceedings in error or upon appeal shall be taken and considered as a step in the cause.
"Proceedings in error shall be amendable as other proceedings and no cause shall be dismissed by the appellate court for any defect or omission not insisted upon by the adverse party."
Since Section 4964, Compiled General Laws 1927, provides for constructive service by recording the entry of appeal in lieu of personal service of citation on the appellees, the statute must be strictly complied with in order to afford due process.
Chapter 11890, Acts 1927, is intended to modify Section 3172, Rev. Gen. Stats. 1920, Section 4964, Comp. Gen. Laws 1927, by making a proper and duly recorded entry of appeal effective as to all proper appellants and binding as constructive notice of the appeal to all proper appellees when one or more of the appellants and of the appellees are named "and the abbreviation et al. be used to designate others than those expressly named." In this case there were several defendants in the trial court against whom the decree appealed from was rendered, all of whom are necessary parties to the appeal, and the caption of the entry of *Page 1041 appeal contains the names of all the parties to the suit. If the caption stated one defendant with the words "et al." added, it would be sufficient if the appeal be taken by all of thedefendants; but where, as here, the body of the entry of appeal stated that the appeal is taken by several designated defendants without including the other defendants, or without stating that the appeal is taken by "the defendants," the appeal is then restricted by the appellants themselves to those named in the body of the entry of appeal, and the statute does not operate to constructively include other necessary appellants.
Assuming that the statutory provision as to the use of the terms, "et al." in appellate proceedings affords due process where all the parties were before the trial court, the intent of the statute is not to make parties in the appellate court those who may be necessary parties appellant but who are excluded by the party appealing by confining the entry of appeal to less than all the parties who should be joined as appellants. Of course when less than all the parties complainant or defendant in the trial court may properly take an appeal or may properly be brought into the appellate court on appeal, the entry of appeal may be restricted to proper parties. Where the entry of appeal is sufficient to give the appellate court jurisdiction of the subject matter of the litigation, parties improperly omitted from the entry of appeal may appear in the cause in the appellate court. Vogt Mac. Co. v. Milton Land Inv. Co., 74 Fla. 116, 76 So. R. 695; McJunkins v. Stevens, 88 Fla. 559, 102 So. R. 756; Provident S. B. T. Co. v. DeVito, decided at this term.
ELLIS AND STRUM, J. J., concur.