Opinion
February 29, 1952. Rehearing Denied March 27, 1952.
Appeal from the Circuit Court for Dade County, Vincent C. Giblin, J.
Milton Kelner, Miami, for appellant.
Blackwell, Walker Gray, Miami, for appellee.
In the Court below the appellee here filed suit against the Miami Transit Company, a Florida corporation, and Thomas Awning Company, a Florida corporation. In due course a trial was had. A verdict of "Not Guilty" was entered in favor of the Miami Transit Company, and of $17,500 against Thomas Awning Company. Thomas Awning Company filed Notice of Appeal and afterwards Sofronia Morgan filed a document entitled "Notice of Joinder in Appeal", in which she made Miami Transit Company a party.
The effect of the filing of this Notice of Joinder in Appeal was to make Sofronia Morgan the cross-appellant, or an appellant, as to the Miami Transit Company.
The Miami Transit Company filed a Motion to Dismiss the Joinder in Appeal on the grounds that same was not in conformity with requirements of the Statute and Rules of this Court, and further that Sofronia Morgan was the original plaintiff in the Court below and had not paid the costs which had accrued in and about the suit up to the time the appeal was taken.
Rule 13, 30 F.S.A., provides for this very procedure. It is not complicated or ambiguous. When Thomas Awning Company filed Notice of Appeal all of the other parties to the cause automatically became parties appellee. This Rule specifically gave to Sofronia Morgan the right to take part or join in the appeal. The Rule further provides: "If any party named as appellee desires to join in the appeal, and shall within the time allowed by these rules for filing notice of appeal, file his joinder in appeal, he may become an appellant and may thereafter, if he desires and within the time prescribed by these rules for such purpose, file such additional assignments of error and directions to the clerk as he may deem necessary."
The Notice of Joinder in Appeal sufficiently complied with the Statute and Rules of the Court as to what the notice should contain. It specified the Court from which the appeal was taken; the style of the cause in which the order, judgment, or decree was entered; the date of the rendition of the order; the book and page on which it was recorded in the office of the Clerk of the lower Court. The Notice was followed by proper assignments of error and directions to the Clerk.
It is next urged that the Notice of Joinder in Appeal should be dismissed because of the failure of the plaintiff below to pay costs as required by Section 59.09, F.S.A., which is 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."
The above is not a Rule of the Court, but is a Statute duly enacted by the Legislature. It is quite evident the Legislature had in mind a definite purpose and intention by this enactment. If the original plaintiff in this suit or proceeding had lost the case entirely and desired to appeal, under this Section she could not have done so without paying all costs which had accrued in or about the suit up to the time the appeal was taken. Had she lost the case in the Court below, all costs would have been assessed against her. In the Court below a verdict of "Not Guilty" was directed for the defendant, Miami Transit Company, and the jury rendered a verdict in favor of the plaintiff in the Court below against the other joint tort-feasor, Thomas Awning Company, for the sum of $17,500. In due course a judgment was rendered based upon that verdict and, as costs follow the judgment, costs were assessed against Thomas Awning Company for the sum of $114. The record does not show that any costs were assessed against Sofronia Morgan, or in favor of Miami Transit Company.
Sofronia Morgan did not file notice of any appeal. The appeal was taken by Thomas Awning Company. Thereafter, and exercising her right as provided for by Rule 13, Sofronia Morgan, who was named as an appellee in the appeal by the Thomas Awning Company, filed Notice of Joinder in Appeal. Under these facts and circumstances Section 59.09, F.S.A., does not apply. As between Sofronia Morgan and Miami Transit Company the record fails to disclose that any costs had accrued, or had been assessed, or that there were any costs to pay.
Wherefore, the Motion to Dismiss the Joinder in Appeal is denied.
SEBRING, C.J., and TERRELL and THOMAS, JJ., concur.