Opinion
December 14, 1951. Rehearing Denied January 15, 1952.
Appeal from the Circuit Court for Palm Beach County, Joseph S. White, J.
Hal S. Ives and Russell H. McIntosh, West Palm Beach, for appellant.
Egbert Beall and Hal H. McCaghren, West Palm Beach, for appellee.
On January 27, 1950, Kathryn Bower filed her bill of complaint in the Circuit Court of Palm Beach County, Florida, against her husband, George Melvin Bower, and prayed for the entry of an order allowing support and maintenance as provided by statute. The husband Bower, on February 2, 1950, filed an answer to the bill of complaint of his wife and at the same time a counterclaim in which he prayed for a divorce on grounds recognized by statute. Later, on February 23, 1950, the wife, Kathryn Bower, filed a reply to the counterclaim of her husband, and on this state of the pleadings a hearing was had and testimony taken on the several issues. After the taking of the testimony the Chancellor heard the controversy and entered an order which denied the husband a divorce, but required him to pay the sum of $20.00 per week to the wife for her support and maintenance.
The husband Bower thereafter by petition applied to the Chancellor for an order of modification of the final decree which required him to pay to his wife the sum of $20.00 per week, and the petition recited that the husband was advanced in years, in poor health and was without sufficient funds to pay the wife the amount provided for in the decree. It appears that some testimony was taken on the petition for modification, when an order was entered which reduced the amount of the payments to $18.00 per week and additional items of cost were assessed against the husband. From this order the defendant husband lodged his transcript and otherwise perfected an appeal to this Court.
On September 21, 1951, counsel for plaintiff-appellee filed in this Court a motion to dismiss the appeal on various grounds, the pertinent one being that defendant-appellant was the original plaintiff in the proceedings below and it affirmatively appeared by the record that he had not paid the cost of the appeal or otherwise secured the payment thereof so as to authorize a review of the order entered below. Section 59.09, F.S.A., was cited. It is viz.:
"59.09. Payment of costs by plaintiff
"No appeal may be taken by the original plaintiff in any suit or proceeding until he shall pay all costs which have accrued, in or about the suit, up to the time the appeal is taken."
This Court, under date of November 6, 1951, sustained the motion to dismiss as filed by the appellee, and on petition for rehearing presented by the defendant-appellant an order was entered under date of December 11, 1951, granting a rehearing and a reconsideration of our previous order of dismissal dated November 6, 1951.
It is contended by the original movant that the husband by his counterclaim, as shown by the record, asked for affirmative relief in the form of a divorce from his wife and thereby became an original plaintiff within the intent and meaning of Section 59.09, F.S.A. Equity Rule 35, 31 F.S.A., authorizes a defendant to set out in a counterclaim against the plaintiff the subject matter of an independent suit in equity — and such counterclaim shall have the same effect as a cross-suit. It was the intention of the Legislature in the enactment of Section 59.09, supra, to simply require the "original plaintiff in any suit or proceeding" to pay all the accrued costs on or about the suit prior to taking an appeal. The Legislature had the power to enact the statute. Walker v. City of Jacksonville, 154 Fla. 893, 19 So.2d 372. This Court dismissed an appeal by the original plaintiff for failure to pay the costs. Keith v. Town of Stuart, Fla., 45 So.2d 493.
It appears by the record that the defendant-appellant is 76 years of age; that within the six months period prior to filing his petition for modification in the lower Court he had earned approximately $50.00 from odd jobs as a carpenter; the appellant's health is not good; and appellant's income from all sources is not in excess of $50.00 per month. The wife brought her suit against the husband in less than twelve months after she married him. He alleged that she stated to the neighbors that "the reason she married defendant was that she did not feel able to work; that he could support her and that is why I married him." He contends that the alimony provisions of the decree are contrary to equity and conflict with our adjudications.
It is our view and conclusion that the defendant-appellant is not "an original plaintiff" within the meaning of Section 59.09, supra, but is such a litigant as is provided for in Section 4 of the Declaration of Rights of the Constitution of Florida, F.S.A. It provides: "All courts in this State shall be open, so that every person for any injury done him in his lands, goods, person or reputation shall have remedy, by due course of law, and right and justice shall be administered with out sale, denial or delay."
It therefore follows that our previous order of dismissal herein must be set aside, held as naught and vacated. The motion to dismiss, on rehearing granted, is hereby overruled and denied.
SEBRING, C.J., and TERRELL and ROBERTS, JJ., concur.