Opinion
July 10, 1951. Rehearing Denied August 4, 1951.
Petition for review from the Circuit Court for Dade County, Aquilino Lopez, J.
Morrow Mayes and Charles F. Wells, Miami, for petitioners.
Robertson McLeod, Coral Gables, for respondent.
On petition for writ of certiorari, we review an order of the Circuit Court of Dade County dismissing an appeal from a final judgment of the Civil Court of Record of such county.
While it is settled that an appellate court has the power to dismiss an appeal for good cause shown and motion therefor seasonably presented, Bramlett v. State, 147 Fla. 771, 3 So.2d 589, it is equally true that such order of dismissal is subject to review by this court on certiorari. Cacciatore v. State, 147 Fla. 758, 3 So.2d 584. In the instant case, the grounds for the motion to dismiss were that the appellant had failed to file his assignments of error and his brief within the time prescribed by the applicable rules of court. Our examination of the record reveals that the brief was filed only a few days after the full limit of the time possible under the applicable statute, Section 33.11, Florida Statutes, 1949, F.S.A. and court rule, Supreme Court Rule 20, 30 F.S.A. While the attorney for appellant did fail to file his assignments of error in the trial court until long after the time for such filing had expired, we do not think that this fact alone constituted good cause for the dismissal of the appeal. The attorney for appellant had, within the time required, filed his directions with the clerk of the trial court for the making up of the transcript of record, and the transcript had been by the clerk properly transmitted to the appellate court. The brief filed by attorney for appellant contained a statement of his assignments of error, and a copy of same was transmitted to and receipted for by the attorney for appellee. Moreover, the principal error complained of was apparent on the face of the record, and involved a fundamental error in the application of a rule of evidence by the trial judge.
This court has heretofore stated that "The rules of practice are for the purpose of aiding in the speedy determination of causes; courts are established for the higher purpose of administration of justice. Where the strict enforcement of the letter of the rules of practice tends, in the opinion of the trial judge, to prevent or jeopardize the latter, the rules should yield to the higher purpose." O'Gara v. Hancock, 76 Fla. 1, 79 So. 167, 168. We think that, in the instant case, the failure to comply strictly with the rules of court would not have resulted in any undue delay, had the cause proceeded promptly to a hearing in the appellate court without the intervention of the appellee's motion to dismiss; and that it was error to grant appellee's motion to dismiss the appeal, some four and one-half months after the motion had been filed, and long after the appellant had filed his brief containing assignments of error and had properly filed in the trial court his assignments of error.
For the reasons stated, the writ is granted and the order of the Circuit Court dismissing the appeal is hereby quashed and the cause remanded for further proceedings in the Circuit Court not inconsistent with this opinion.
It is so ordered.
SEBRING, C.J., and TERRELL, CHAPMAN, THOMAS, HOBSON, and ROBERTS, JJ., concur.
ADAMS, J., not participating.