Opinion
August 5, 1952. Rehearing Denied October 14, 1952.
Appeal from the Circuit Court, Dade County, N. Vernon Hawthorne, J.
Taylor, Burr Creel and Joe Creel, Miami, for appellant.
Kanter Marks, Miami, and Bart L. Cohen, Tallahassee, for appellees.
After the appeal in this case was perfected appellees moved seasonably to dismiss because costs assessed against appellant in the final decree, dated April 3, 1952, were not paid. The pertinent statute is Section 59.09, F.S.A., as amended by Chapter 22854, Acts of 1945, as follows:
"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."
Appellant contends that the costs were all paid when the appeal was taken except one item of $19 due Boston Lunz, the Court Reporter, and since the final judgment did not itemize the costs but ordered that "the cause be and the same is hereby dismissed at the costs of the plaintiff," appellant should not suffer a dismissal of the cause for mere technical grounds.
We do not think costs in a case accrue until they are assessed by the judgment or decree appealed from, and the amount of them stated so that execution may issue. A reading of the pertinent statute will convince one that it covers any "costs which have accrued, in or about the suit, up to the time the appeal is taken." Such a provision is ample to cover court reporters' charges. It is better practice to itemize costs in the judgment if the items are considerable. A mere statement that the cause is "dismissed at the cost of the plaintiff" is not sufficient predicate to produce a dismissal in this court for nonpayment of costs. The judgment should put the appellant on notice of what he is required to pay before he appeals. Omohundro v. Wilkins, 94 Fla. 649, 114 So. 502; Skinner Mfg. Co. v. Douville, 61 Fla. 432, 54 So. 810; Dallam v. Sanchez, 56 Fla. 779, 47 So. 871. The costs imposed must be those legally due. Akins v. Bethea, 160 Fla. 99, 33 So.2d 638.
We could agree with counsel that the act is harsh and oppressive and that appellant should not suffer a dismissal for technical reasons. The answer to this contention is that the act has been on the books more than one hundred years, since February 12, 1836, and this court has repeatedly held that it is for the benefit of the defendant, that he may waive it, but when it is invoked it is an indispensible prerequisite to taking an appeal, and if not complied with, the appeal will be dismissed. Union Bank v. McBride, 2 Fla. 7; Thomas Awning Co. v. Morgan, Fla., 57 So.2d 427; Keith v. Town of Stuart, Fla., 45 So.2d 493; Walker v. City of Jacksonville, 154 Fla. 893, 19 So. 372 and cases therein cited.
In Walker-Skagseth Food Stores v. National Surety Corporation, 148 Fla. 161, 3 So.2d 756, we held that the statute did not make the payment of accrued costs a jurisdictional prerequisite to taking a writ of error, but as heretofore pointed out, we have said that it was an indispensible prerequisite; so for all practical purposes there is little difference. Regardless of what we think of it, the legislature has imposed it, and it is equally as binding on the court as it is on counsel.
The motion to dismiss is overruled because the judgment imposing costs was insufficient to put appellant on notice as to amount of accrued costs.
It is so ordered.
SEBRING, C.J., and THOMAS and HOBSON, JJ., concur.