Belton v. Williams , 15 So. 2d 471 ( 1943 )

On application of counsel of defendants, appellants, the record in this case was returned to the lower court to the end that a service of notice of appeal could be had upon the widow and heirs of George W. Belton, original plaintiff, who had died. This was done as prayed for and the record accordingly completed. Thereafter the substituted plaintiffs, appellees, sued out a rule on the appellants to show cause why the order of the court dated April 21, 1941, authorizing and permitting them to take and prosecute a devolutive appeal herein without the payment of costs, present or future, and without furnishing appeal bond, should not be annulled and set aside. The rule came on for trial and there was judgment as prayed for by appellees. This occurred on June 11, 1942.

It satisfactorily appears that appellants have not procured any order of appeal nor have they tendered bond therefor since rendition of the judgment on the rule. In other words, appellants have not perfected an appeal since June 11, 1942. Appellees, in this court, have moved to dismiss the appeal on the ground that more than one year has elapsed since rendition of judgment on the rule, and, therefore, the original judgment on the merits is now res judicata.

In reality, the present status of the appeal is the same as if no order of appeal preceded it, since the order of appeal originally taken has been, contradictorily with appellants, set aside.

For the foregoing reasons, the motion to dismiss is sustained, and this appeal is hereby dismissed at the cost of appellants.