Jacksonville, Mayport & Pablo Railway & Navigation Company, and the Mercantile Trust Company, Appellants, vs. George F. Broughton et al., Appellees, 38 Fla. 139

Mabry, C. J.: Gfeorge F. Broughton, J. 1ST. C. Stockton and C. F. Warriner have filed two motions to dismiss the appeals entered in' this cause, one directed to the appeal entered by the Railway k Navigation Company, and the other to the appeal entered by the Trust Company, Kendrick and Russell. Application has been made on behalf of Kendrick and Russell to dismiss the appeal as to them, and the granting of this application, which is done, disposes of all questions as to the appeal in their names.

The first three grounds of the motion directed to' the appeal entered by the Railway Company are substantially that the entry is by said company in the name of all the defendants, and no other name than that of the company appears in the entry; it does not appear that all the defendants were not willing and ready to join in the appeal, or that said defendants had no opportunity of joining in the appeal for the protection of their rights. In the appeal entered by the Railway Company the style of the case is given as Geo. F. Broughton, et al. vs.

Jacksonville, Mayport, Pablo Railway & Navigation Company et al., and the recital is, “now comes the Jacksonville, Mayport, Pablo Railway & Navigation Company, and in the name of all the defendants hereto takes and enters its appeal,” etc. The only parties defendant to the action, as shown by the record, were the Railway & Navigation Company and the Mercantile Trust Company, and the latter, on the same day, and at the same time for aught we know, that the former appealed, also entered an appeal.

We are satisfied that the decrees rendered in the present case are not so joint either in form or substance against the defendants as to demand a joint appeal on their part. The decree is against the Railway Company for a sale of its property to pay certain sums adjudged to be due from it, but there is no money demand or liability of any kind adjudged against the Trust Company. The allegation in the bill is, that it was the trustee of certain mortgage bonds, but subordinate in right of payment to other lien claims. The decision in the case of Guarantee Trust & Safe Deposit Co. vs.

Buddington, 23 Fla. 514, 2 South. Rep. 885, sustains the view we take, rather than that contended for on behalf of the moveants. The rule as there stated does not preclude any one party who may be aggrieved by a decree in his separate interest, or several parties who may be aggrieved as to their united interests, from taking, the former his individual appeal, and the latter their joint appeal, although there may be numerous other parties adjudged against by the same decree, but not united in interest with such individual or joint parties in the matter so decreed as to him or them.

There are two separate appeals in the record before us, and the one entered by the Railway Company is sufficient so far as an appeal on its own behalf is concerned. The fourth ground is, that no assignment of errors was filed in the clerk’s office within the time required by law, “nor otherwise than in and by the said J., M. & P. Railway & Navigation Company alone. The appeal was entered on the 20th of January, 1896, and on the 30th of the same month assignments of errors were filed both by the Railway Company and the Trust Company, setting up the alleged grounds of error upon which they severally relied.

The assignments of error were filed in the proper clerk’s office within the time prescribed by Special Rule 4, regulating appeals in chancery, that is, within ten days after the appeal was entered. Crawford vs. Peder, 27 Fla. 523, 8 South. Rep. 642. It is contended in the brief that the fourth ground to dismiss is, that no assignment of errors was filed within time by appellants except by the Railway Company. As a matter of fact assignments of errors were filed by both appellants on the same day.

We do not understand the contention to be that the assignment of errors is fatally defective because not jointly made, but if such be the purpose of this ground of the motion, it is not good. The rules do not prevent a severance as to assignments of errors by appellants in perfecting an appeal to this court. The fifth ground of the motion is, that citations have not been issued, served and returned in the cause.

In support of this ground of the motion counsel cite the provisions of our statutes relating to the issuance and service of citations, and decisions in this court showing the necessity of the same when not waived. We have before us an original citation issued by the Clerk of the Circuit Court on the 11th day of February, 1896, notifying George F. Broughton, John N. C. Stockton, John S. Fairhead, Henry C. Strawn and B. R.

Powell, partner as Fairhead, Strawn & Co., Joseph Hathorne and the Mercantile Trust Company, that the Railway Company and the Trust Company had taken an appeal from the decrees and orders of the Circuit Court, bearing date the 22nd of July, 1895, and other- dates shown by the record, to the Supreme Court, to be heard on the second Tuesday in June, 1896, and they were cited to show cause why said decrees and orders should not be reversed.

This citation was served on all the parties named in person except the Trust Company and Joseph Hathorne, and as to them upon their respective attorneys, more than twenty-five days before the first day of the present June term of the court. The ground of the motion is, that no citation had been issued, served and returned in the cause, and no defect either as to the issuance or service of the citation mentioned is pointed out in the motion or brief. Confining ourselves to the specific objection made, the conclusion is that this ground of the motion is not sustained.

The only other ground of this motion requiring consideration is, that no copy of the record or abstract of the record, accompanied by an assignment of errors, as required by the rules of this court, has been served on the moveants by appellants. There is here on file in the cause a joint receipt signed by counsel for all the moveants, as follows, after giving the style of the case as the Mercantile Trust Company, and the Jacksonville, Mayport, Pablo Railway & Navigation Company, appellants, vs. George P. Broughton et al., appellees, viz: “Received of Bisbee & Rinehart, of counsel for appellant, Mercantile Trust.

Company, in the above entitled cause, certified copy of the transcript of the record therein, and also copy of the appellants’ abstract of record, this June 8th, 1896.” Prom this receipt, the correctness of which is not questioned here, it appears that a certified copy of the record in the cause, containing all the assignments of errors filed in the Circuit Court, was jointly accepted b'y counsel for appellees within the time prescribed by Supreme Court Rule 12, the one bearing on the subject, but this copy, as is shown, was served not by the Railway Company, but the Trust Company.

The rule provides that “the plaintiff in error or appellant shall file in the Supreme Court at the time required by law a duly certified transcript of the record clearly and legibly type-written or printed in black ink, and within the same time shall serve the opposite party or his attorney with a type-written or printed copy thereof, preserving in said copy the pages and order in the transcript.” The entire proceedings in the Circuit Court were in one and the same cause, and there is’in fact but one transcript of the record before us.

This transcript was made up under all the directions given to the clerk, and the question is presented whether it is necessary when there are two or more appellants assigning errors and giving directions as to making up a joint transcript for each one to serve a copy of the transcript on the opposite party or his attorneys. No useful purpose can be subserved in such a case by insisting on such a requirement, as one copy served by any one of the appellants will answer all the objects that a dozen or more could serve.

Neither the letter nor the spirit of the rule demands such a construction, and we hold that a certified copy of the transcript of the record served by one plaintiff in error or appellant, where there are more than one, on the opposite party or his attorney meets the requirement as to serving a copy of the transcript on the opposite party. We deem it proper to say that the terms “opposite party or his attorney,” in connection with the requirement as to serving a copy of the transcript, implies all opposite parties or their attorneys.

The obvious purpose of the requirement as to serving a copy of the transcript indicates that such is the meaning of the rule. If there are two or more defendants in error or appellees represented by different attorneys, each party or his attorney must be served with a copy of the transcript, unless waived; but if two or more of them, or all of them, are represented by the same attorney, service of one copy on such attorney will be sufficient for all the parties whom he represents.

There is no objection here that a copy of the transcript was not served on each one of the moveants; but the point is, that the Railway Company did not serve a copy on them. The receipt of the copy delivered by the co-appellant Trust Company is joint, and signed by counsel for all of the moveants. It is conceded by the Railway Company that no copy of the abstract of the transcript has been- served by it, and application is made along with this motion for leave to prepare and file copies as required by the rule.

The reasons assigned to the court for a failure to prepare and serve the abstract are deemed sufficient to authorize it to be now done; and counsel will have twenty days in which to file four copies of the abstract of the record as required by the rule in this court, and to properly serve copies on opposite parties.

The fourth ground of the motion to dismiss the appeal as to the Mercantile Trust Company on account of the joinder in the appeal' of Kendrick and Russell is disposed of by the dismissal as to them. ■ The first and fifth grounds — that no abstract of the record had been served upon either of the appellees, and no assignment of -errors was filed in the clerk’s office where the appeal was entered within the time required by the rules of this court — are without foundation in fact.

The evidence before us shows that an abstract of the record was served by the Trust Company within the time required, and from the transcript it appears that an assignment of errors was duly filed in the proper clerk’s office. The second ground of the motion is, that no citation was issued, served and returned in the cause within the time required by law. There is on file here an ■original citation issued by the Clerk of the Circuit Court on the 11th day of February, 1896, notifying George F. Broughton, John N. C. Stockton, Joseph Hathorne, Charles F. Warriner, surviving partner of Hungerford & Warriner, John S.

Fair head, Henry C. Strawn and Benjamin R. Powell, partners under the firm name of Fairhead, Strawn & Co., and the Jacksonville, Mayport, Pablo Railway & Navigation Company, that the Mercantile Trust Company, William J. Kendrick and James A. Russell had taken an appeal from the judgments, orders and decrees of the Circuit Court, béaring date July 22d, 1895, as well as from all interlocutory orders made in the cause, to the June term, 1896, of the court, to be held on the second Tuesday of the month.

This citation was personally served on all the parties named except Joseph Hathorne, and as to him the service was on his attorney. What is said as to the fifth ground of the motion to dismiss the appeal entered by the Eailway Company is applicable here, and need not be repeated. The third ground of the motion needs no discussion, as what has been said in relation to the appeals by the parties disposes of it. The sixth and only remaining ground of the motion is, that the appeal was entered and taken more than six months after the entry of the final decree against the Trust Company.

On the 17th of November, 1893, a decree pro eonfesso was entered against the Trust Company, and on the 6th of March, 1894, it was decreed on the report of testimony by the master that complainant have the relief prayed in his bill, and the cause was referred to the master to take and state an account of what was due complainant and any other creditor of the Eaihvay Company who wmuld come in and prove his claim.

It was further ordered that the master report to the court the order in which the claims, w^hich he found due from said company to the several creditors, were entitled to share in the proceeds of the sale of the property of the company. The master reported on the 6th of April, 1895, various claims as due from the company as lien demands and first mortgage bonds, and also settled the priority of liens and claims allowed.

This report, with some modification, was confirmed on the 21st of June, 1895, and on the 22d of the following month a decree was rendered ordering a, sale of the railroad, its rolling-stock, machinery and franchises to pay the claims reported by the master and allowed by the court. There were other orders made in the cause subsequent to the order of sale mentioned.

The contention is that the decrees of November 17th, 1893, and March 6th, 1894, were final as to the Mercantile Trust Company, and that its right of appeal was barred, the statutory limit of six months from the entry of said appeal having expired before the entry thereof. Counsel assume the position that under our present statutory regulations as to appeals in chancery, no interlocutory decree entered in a cause can be reviewed unless an appeal be taken therefrom within six months from the entry thereof. The last regulation on the subject is the act of 1893,

Chapter 4130, entitled “An act to limit the time within which appeals in chancery may be taken,” and providing that ‘ ‘all appeals in chancery, whether from final decrees or from interlocutory orders or decrees, must be taken within six months after the entry of the final decree, or of the entry of the interlocutory ord'er or decree appealed from. ’ ’ In construing this statute we should keep in mind the prior legislation • on the subject. It was held in Bellamy vs. Bellamy, 4 Fla. 242, decided, in 1851, that under the statute regulating appeals in chancery in force at that time an appeal could be taken only from a final judgment, sentence or decree. In 1852

an act was passed providing “that appeals may be taken and prosecuted from any interlocutory order, decision, judgment or decree of the Circuit Court of this State when sitting as courts of equity,” with a proviso as to when and the conditions upon which such appeals should operate as supersedeases.

It was also provided “that this act shall not be construed so as to deprive either party from deferring and postponing the entry of his, her or their appeal until after the entry of the final decree, or end of the cause, as now prescribed by law, nor shall such postponement of the appeal be decreed, held or taken as an acquiescence in the propriety of any interlocutory order or decree made in the progress of the cause, or any waiver of any error therein.” The purpose of the act is expressed in a

preamble to the section. It is said by this court in State vs. Johnson, 13 Fla. 33, 41: ‘ ‘The

preamble to the

section explains the reason of the enactment.

It often happened that an interlocutory decree or order made important changes in the relation of parties and their property, and gave occasion for delay, and often of great expense, which decree or order may have been erroneous, whereby after years of litigation, a final decree may have been set aside by the appellate court. • The object of this statute of 1852 was to give parties a means of correcting such errors without the great sacrifices and inconveniences arising from the postponement of an appeal until a final decree.” The act of 1852, found on pages 167 and 168, secs. 2 and 3 of McClellan’s Digest, continued the law on the subject until the Revised Statutes went into effect ih June,

Section 1457 of the Revision provides that “appeals may be taken and prosecuted from any interlocutory order, decision, judgment or decree of the Circuit Courts of this State, when sitting as courts of equity; but the conferring of this right shall not be construed so as to deprive either party from deferring and postponing the entry of his appeal until after the entry of the final decree, or end of the cause, as prescribed by law; nor shall such postponement of the appeal be deemed, held or taken to be an acquiescence in the propriety of any interlocutory order or decree made in the progress of the cause, or any waiver of any error therein.

Such appeal may be taken within two years after the entry of the order or decree appealed from.” This provision is substantially the same as that contained in the act of 1852, with the addition of the limitation of two years within which to enter an appeal from the interlocutory order or decree appealed from. It was the rule of this court, both before and subsequent to the act of 1852, that an appeal from the final decree opens for consideration all prior interlocutory orders or decrees connected with the merits of the final appeal. Le Baron vs. Fauntleroy, 2 Fla. 276; Hyer’s Executors vs.

Caro’s Executrix, 17 Fla. 332. The purpose of the legislation as to chancery appeals from interlocutory orders or decrees prior to the act of 1893 was, we think, to provide for separate appeals from such orders or decrees before the final decree, or end of the cause, without interfering with the right to have all prior interlocutory orders or decrees from which no appeal had been taken opened for consideration on an appeal from the final decree when connected with the merits thereof.

Such is unquestionably the correct view under the regulations prior to the addition of the limitation of time in which such appeals could be taken, and found in the Revised Statutes, and along with that addition it is expressly provided that the right to such appeal shall not deprive a party of the privilege of postponing the entry thereof until after the final de c^ee is entered as prescribed by law, nor shall postponement be held as an acquiescence in the propriety of any interlocutory order or decree made in the progress of the cause, or a waiver of any error therein.

Under this provision a party had the right to a separate appeal from an interlocutory order or decree at any time-within two years from the entry thereof, without waiting for the final decree, but if no appeal was entered from an interlocutory order, it was still subject to review on the appeal from the subsequent final decree if connected with the merits thereof. The act of 1893 was not designed to change this rule in any respect except to limit the time in which both characters of appeals may be taken.

Two years was allowed for appeals from final decrees under the Revised Statutes, and as the time for suing out writs of error from judgments in civil actions had been limited to six months from the date thereof, the purpose of the Legislature was to place a like limitation upon separate appeals in chancery, whether from final or interlocutory decrees. The object of the present motion, is to dismiss the appeal entered by the Mercantile Trust Company, because it was entered more than six months after the final decree was rendered against it.

The first decree appealed from in the entry made is the one entered on the 22d day of July, 1895, within six months from the entry of the appeal, and then follows an entry from all the interlocutory decrees in the cause. We do not propose on this motion to go into a consideration of what was the final decree in the cause, or the characteristics of a final decree.

It was clearly the purpose of the act of 1893 to limit an appeal from a final decree to six months, and it may be conceded that a party has no right to assign errors on a decree from which he has no right to appeal, and that if such assignments are made the • opposite party has the right to move to dismiss them, or object to their consideration in this court.

Without considering the right of the Trust Company to assign errors on decrees or orders made prior to July 22d, 1895, it is evident that there is no bar of an appeal from the decree of that date and the orders subsequently made, and it would be clearly improper to dismiss the appeal oil the ground stated. It is not questioned that an appeal in chancery can be taken from a decree rendered upon a decree pro confesso with limitations as to what is open for consideration under such an appeal. Hart vs. Stribling, 21 Fla. 136; Garvin vs. Watkins, 29 Fla. 151, 10 South. Rep. 818.

An order will be entered denying the motions.