This is the second appeal in this cause. Gill v. Smith,117 Fla. 176, 157 Sou. Rep. 657. The case *Page 294 is now before this Court on a motion by appellee to dismiss the appeal as frivolous and to assess 10% damages against appellants in accordance with the applicable statute. In re: Benedict's Estate, 117 Fla. 472, 158 Sou. Rep. 276; Section 4639 C. G. L., 2920 R. G. S., 4965 C. G. L., 3173 R. G. S. Appellant has subsequently moved for a voluntary dismissal of his own appeal without prejudice, as provided for by our rule. Thompson v. Filer, 99 Fla. 539, 126 Sou. Rep. 766; Supreme Court, Rule 23.
The motion of appellee to dismiss the appeal as frivolous and to assess damages as for a frivolous appeal having been first filed is entitled to consideration at the hands of this Court despite the motion of appellant for a voluntary dismissal of his own appeal without prejudice. In lieu of dismissing an appeal as frivolous we may affirm the decree, order or judgment appealed from, where the time of the appellate court has been required to be given over to a study of the record and briefs in order to decide the motion and it has been made clearly apparent to it from such study that no good purpose will be subserved by continuing the appeal on the Supreme Court's docket, notwithstanding the appeal cannot be characterized as frivolous within the rule governing dismissal of or quashing frivolous appeal. Holtsberg v. McCarty, 117 Fla. 554, 158 Sou. Rep. 123.
A study of the record and briefs in this case has convinced us that while the appeal herein is not frivolous, the orders appealed from are without error and should accordingly be affirmed under the rule last above stated, with leave to appellee to include the costs of the transcript as advanced by him in the taxable costs allowed to him on this appeal.
Affirmed and remanded.
WHITFIELD, C. J., and BROWN and DAVIS, J. J., concur. *Page 295
ELLIS, P. J., and TERRELL, and BUFORD, J. J., concur in the opinion and judgment.