DeBogory v. Hafleigh

81 Fla. 631

• Court: Supreme Court of Florida
• Decided: April 25, 1921
• Status: Published

Opinion

Whitfield, J.

The entry of appeal herein is as follows :

“Norman B. Hafleigh and Bertha Hafleigh, His Wife, Complainants, v. Adelaide S. DeBogory, and P.

DeBogory, Her Husband, Defendants,

Notice of Appeal.

“The defendants, Adelaide S. DeBogory and P. De-Bogory, her husband, by D. J. Hefferman, their solicitor, enter their appeal to the Supreme Court of the State of Florida from a final decree made on the 27th day of July, A. D. 1920, for the complainants; Norman B. Hafleigh and Bertha Hafleigh, his wife, and against the defendants, Adelaide S. DeBogory and P. DeBogory, her husband, which final, decree is recorded in Chancery Order Book 10, page 221, in the office of the Clerk of the Circuit Court, Eleventh Judicial Circuit of Florida, in and for Dade County, in Chancery.

“This appeal is made returnable on the 10th day of January, A. D. 1921, and the Clerk of the Circuit Court aforesaid is hereby directed to forthwith file this notice of appeal and record same in the Chancery Order Book, as required by law.

“Dated at Miami, Florida, this 14th day of December, A. D. 1920.”

The return day in appeals in chancery is governed by the statutes regulating writs of error. Sec. 1912, Gen. Stats. 1906; Parker v. Evening News Pub. Co., 54 Fla. 482, 44 South. Rep. 718; Ayers v. Daniels, 67 Fla. 482, 65 South. Rep. 660; Ates v. Langley, 61 Fla. 504, 54 South. Rep. 264; Spencer v. Travelers’ Ins. Co., 39 Fla. 677, 23 South. Rep. 442; Sec. 3173, Rev. Gen. Stats. 1920.

The statute provides that the return day of a writ of error shall be “more than thirty days and not more than ninety days from the date of the writ,” or in chancery cases from the entry of the appeal. Section 1698, Gen. Stats. 1906, Compiled Laws, 1914, 2908 Rev. Gen. Stats. 1920.

Where an appeal to the Supreme Court made returnable in violation of the statute so as to be void and to confer no jurisdiction of the subject-matter upon the Supreme Court, the appearance of the appellee cannot of itself give the court' jurisdiction of the subject-matter of the appeal, and such an appeal so taken should be dismissed by the court sua sponte. Griffith v. Henderson, 52 Fla. 507, 42 South. Rep. 705; Anderson v. State, 73 Fla. 86, 74 South. Rep. 6.

The appeal in this case was entered December 14, 1920, and made returnable January 10, 1921. The return day is less than thirty days from the date of the entry of the appeal, which is a violation of the statute, and for which the appeal must be, and is hereby, dismissed.

Browne, C. J., and Taylor, Ellis and West, J. J., concur.