DaCosta v. Dibble

Carter, J.,

dissenting.

On October 38, 1901, appellants entered their appeal to (he January term, 1902, of this court, from' a decree of the Circuit Court dated July 25, 1901. No transcript was filed in pursuance of this appeal, and after the return day thereof had passed, viz: on January 20, 1902, appellant’s counsel filed in the court below a praecipe for the dismissal of that appeal, and the clerk entered in the Chancery Order Book an order purporting to dismiss it in accordance with the praecipe. No effort was made to *232prosecute that appeal further than the filidfe and record of the entry of appeal, nor does it appear that any supersedeas was obtained thereon.

After the supposed dismissal of that appeal, appellant on January 21, 1902, entered another appeal, 'returnable to the first day of the June term, 1902, of th|s court, ha i same duly recorded, and filed in this court in June, 1902, a transcript duly made up in pursuance of directions given after the entry of the second appeal, in which all reference to the former appeal is omitted. Appellees producing the certificate required by section 1275 Revised Statutes (which by section 1462 Revised Statutes is made applicable to appeals; in chancery), ask that the first appeal be dismissed in accordance with the requirements of that statute, because of the failure to file transcript of the record as required thereby. No “good cause” is shown for the failure, to file the transcript in pursuance of that appeal; on the contrary, it affirmatively appears that the appellant has abandoned that appeal by attempting to dismiss it, and I think, therefore, that the first appeal ought to be dismissed.

The appellees further move the court to dismiss the see-

• ’ appeal because when it was taken the prior appeal was pending in this court, and had not been dismissed. T shall not commit myself to the proposition that the praecipe to and order of the cierk in the court below are nullities in so far as they purport to dismiss the appeal, but for the purposes of ¿this case- shall assume that the appeal was not dismissed thereby. But it does-not follow, because they could not operate as a dismissal, that they shall not be given any effect whatever. On the contf&w, they constitute the very highest evidence that the appellant intended to abandon that appeal, and are relied upon *233here as showing his right to enter the second appeal. No effort was ever made to perfect the first appeal after this action was taken in the court below, and in the face of this action appellant would have been precluded from doing so upon the ground that he had abandoned his appeal. Ellsworth v. Haile, 29 Fla. 256, 10 South. Rep. 612. In Baker v. Chatfield, 23 Fla. 62, text 63, 1 South. Rep. 779, it is said: “The abandonment of an attempt to perfect an appeal in a common law action under our statutes, or, in other words, the failure or omission after having entered an appeal to give the required bond within the thirty days allowed by the statute is not a bar to the suing out a writ of error to the same judgment after the expiration of the thirty days and within two years from the date of the judgment.” While in the majority opinion that decision is put upon the principle announced in Garrison v. Parsons, 41 Fla. 143, 25 South. Rep. 336, viz: that the appeal by reason of the failure to give the bond was void, it is clear that the court had in mind the application of a different principle, viz: that the appeal was, for the reason stated, abandoned, and that the abandoned appeal would not bar. a subsequent writ of error from the same judgment. And this rule is sustained by the authorities. 2 Enc.v. Law and Procedure, 529, 530 and notes.

There is nothing in American Contract & Finance Co. v. Perrine, 40 Fla. 412, 24 South. Rep. 484, which can be construed as holding that a party can not abandon his appeal and take another without actually dismissing the first. There was no abandonment in that cáse. Both a ripeáis were entered to the same term, assignments of error and directions to the clerk were filed upon each appeal, both appeals and the directions and assignments of er ror upon each were put into the transcript by appellants’ *234directions, and the transcript was filed here upon the return day of the first appeal. These facts show that appellants intended to rely upon both appeals. It is stated therein that it is irregular for a party to enter a secón 1 appeal iron; the same decree while his first is still pending and effective, but, as I have shown, the first was not effective in this case because it had been abandoned. The rule announced in that ease is fully met in this, and as the first appeal was not effective, the second must be sustained under the authority of that decision. The majority of the court purport to follow that case, and to limit .the former cuse of Glasser v. Hackett, 37 Fla. 358, 20 South. Rep. 532, while the effect of the decision is to overrule and demy the authority of both cases in so far as they declare or imply that a former ineffective appeal will not bar a second, and to lay down the rule that any former pending appeal will bar a sécond, unless such former appeal be void. In my opinion such a doctrine is contrary to authority elsewhere, and is upheld only by denying the authority of previous decisions of this court. The argument urged in support of the ruling here made admits that a party may abandon appellate proceedings and thereby forfeit his right to a review of his case on the merits and subject it to dismissal by the appellate court, but niain•taims that after an appeal has by abandonment become valueless and ineffectual to give relief or to do the other party harm, it may still be used to. deny the party the right to a hearing upon another appeal taken from the same judgment, because it is assumed the abandoned appeal will, together with the second appeal, “clog up and confuse the appellate proceedings,” and because “the appellate court must in the multiplied cases that may be presented under two effectual appeals determine whaf acts *235'«ui amount io an abandonment in the different cases.”

L am unable to see that an abandoned appeal,can be used either to “clog up” or “confuse” appellate proceedings, under any circumstances, or that an abandoned appeal can be considered an “effective” one, and if it be true that a court may reject a correct principle and refuse to adopt or apply if, because it may become necessary in future, case s to determine whether a given state of facts brings a particular case within it, I have found no authority so holding. Carried to its logical conclusion, such a doctrine would authorize the court to reject any rule or principle simply because cases may be imagined wherein it would be difficult to determine if it applied. In my humble judgment courts are not justified in refusing to adopt or apply a correct principle or rule of law, because cases nmy in future arise wherein it will be difficult to say whether the facts bring them within the rule or principle. • Courts, and particularly courts of last resort, do not lie “on flowery beds of ease,” nor sail over smooth waters always, nor are tlhey authorized to disregard legal principles in ordere to mark out easy paths for them to follow. They can not refuse to determine a difficult problem when properly presented, nor refuse to apply the law, nor deny its authority, nor overrule decisions upon any such specious arguments as these advanced here. We must not forget that the dismissal of this appeal denies appellant a hearing in the court of last resort, and that in de-' nying him a hearing we are denying a right which is given him by law, and which is not qualified by any provision that he must bring his case in such a manner as not to “clog up and confuse” appellate proceedings, but only that it shall be brought according to the rules of the law. In reply to the argument that appeals of this nature *236would “clog up and confuse” appellate practice, I quote the remarks of the court in Harris v. Ferris, 18 Fla. 81: “It was remarked that if second appeals were allowed it would open the door to abuses by successive appeals, and would lead to delay and annoyance, but as cases arise the court will determine, as to the good faith of appellants and endeavor to protect itself and opposing parties against imposition.” The rule which forbids the maintenance of two effective appeals at the same time is based upon reason and authority. As said in American Contract & Finance Co. v. Perrine, supra, “there can be no necessity’ for a second appeal in such cases, as the first can be made to accomplish every purpose for which the second may be made available. Successive appeals of this nature won] d burden the court’s docket and cause expense and trouble to parties t litigant for no useful purpose.” And in Glasser v. Hackett, supra, it is'said: The reason upon which the rule proceeds is that the first suit^ effective and available, and affords ample remedy to the plaintiff, and therefore the second suit is unnecessary and consequently vexatious. There seems to' be no propriety in extending the rule to cases where the reason does not exist. Therefore, where it is shown that the former suit is ineffectual to accomplish its purpose, or that it' has been dismissed and is not pending, the second suit appears upon the face of the proceeding as necessary and not vexatious and should not be abated.”

The view announced by the majority in this case was presented,to and considered by the court in that case and rejected as untenable, and to my mind it .is utterly so. The true reason for the correct rule is stated in the Glasser case; and where, as in this case, th$ first appeal was expressly abandoned»before the second was taken — has *237never been attempted to be perfected since that time, the term to which it was returnable has expired long before this motion was made — the opposite party has been put to no trouble or expense in relation thereto, the second is not vexatious, and should be maintained. To my mind the dismissal of the second appeal in this case is based upon tlie most extreme technicality, and I think it is unsuppbrted by either reason or authority.

The motion lo dismiss the second appeal should be de nied.

1 am authoi ized to say that MAXWELL, J., concurs in this opinion.