Jenkins v. McClendon

183 So. 2d 706, 1966 Fla. App. LEXIS 5585

• Court: District Court of Appeal of Florida
• Decided: March 8, 1966
• Docket: No. G-459
• Status: Published

Opinion

PER CURIAM.

This appeal is from a final judgment entered in a suit for ejectment brought by appellants against appellee. At the conclusion of the proceeding the trial court assessed a special masters fee of $400.00 as costs against appellant plaintiffs, and ordered that it be paid. The taxing of these costs against plaintiffs has been assigned as error on this appeal.

Appellee has moved to dismiss the appeal on the ground that although appellants, as original plaintiffs, have assigned as error the taxing of costs against them, they have failed to pay such costs or to supersede the judgment specifically taxing the same as required by the Florida Appellate Rules.¹ It is noted that this appeal was taken prior to the effective date of the amendment to Florida Appellate Rule 3.2(f), 31 F.S.A., which amendment became effective on October 29, 1965.

The Florida Appellate Rule relative to su-persedeas as of right provides that a final judgment or decree which is the subject of an appeal may be superseded by the appellant at any time prior to the filing of the record on appeal in the appellate court.²

The file in this cause reflects a certificate by the clerk of the circuit court dated August 25, 1965, to the effect that no super-sedeas bond has been filed in that court by the appellants in this case. A further examination of the file reveals, however, that the record on appeal was not filed in this court until November 17, 1965. Whether a supersedeas bond was posted by appellants between the date of the clerk’s certificate on August 25, 1965, and the date on which record on appeal was filed in this court on November 17, 1965, does not appear from appellee’s motions, or the exhibits submitted by her. For that reason the motion to dismiss the appeal is denied without prejudice to the right of appellee to renew the motion upon a proper showing that appellants have failed to comply with the requirements of the rule with respect to su-persedeas. An administrative order will be entered accordingly.

RAWLS, C. J., and CARROLL, DONALD K., and JOHNSON, JJ., concur.

1 . Rule 3.2(f), Florida Appellate Rules.

“Payment of Costs by Original Plaintiff. No appeal may be taken by the original plaintiff in any suit or proceeding until he shall have first paid all costs that have accrued in and about the suit, and have been specifically taxed against him, up to the time the appeal is taken; provided, that nothing contained herein shall require the prepayment of costs by the original plaintiff when he has assigned as error the taxation costs and has superseded the order, judgment or decree specifically taxing the same; provided further, that in those instances where the costs are not settled until after the notice of appeal is filed, the party obligated shall be required to pay the same within ten (10) days upon written demand, otherwise said appeal shall be dismissed upon motion.”

2 . Rule 5.5, Florida Appellate Rules.

“MOTION AND ORDER FOR SU-PERSEDEAS TO STAY FINAL JUDGMENT

“If a party desires to supersede a final decision, judgment, order or decree, he shall, at the time the appeal is taken, or at any time prior to filing the record-on-appeal in the Court, apply to the lower court for an order fixing the amount, terms and conditions for good and sufficient bond to be payable to the adverse party.”