Green v. Cook , 102 Fla. 837 ( 1931 )

This case is before the Court on motion to dismiss the appeal because the plaintiffs in error failed to comply with amended rule 20 in the preparation of their brief and also upon the ground "that said appeal was frivolous and was not taken by appellants in good faith, but was so taken by the appellants for the sole purpose of delaying the final adjudication of the cause on its merits."

Appellants were allowed to file an amended brief to conform to the provisions of amended rule 20. The amended brief does not comply with the provisions of the amended rule 20 in stating the questions involved, but as it appears that a real effort was made to comply with the rule in this respect and as members of the bar have not been fully advised as to the construction given by the Court to the language of the rule, we are not inclined to dismiss the cause because of the lack of strict compliance in this regard.

On consideration of the motion to dismiss because the appeal is frivolous it has been necessary for us to look to the transcript of the record and consider the questions there presented and as the brief on behalf of the appellant is before the Court, we have decided to make final disposition of the case, as was done in the case of Roberts Brothers, et al. vs. Langford, 99 Fla. 1268, 128 So. 810, wherein it was held:

"Although the appellate court upon a motion to dismiss an appeal upon the ground that it is frivolous will make only a superficial examination of the record for the purpose of ascertaining whether any questions are presented which may be considered debatable, yet, when such examination reveals no substantial error in the proceedings and the court is satisfied of the correctness of the judgment or decree attacked and can perceive no reason for deferring the consideration of the case and the briefs are filed and the cause ready to be submitted, the court will by affirmance of the decree or judgment finally dispose of the appeal."

The appeal is from an order granting motion to strike certain portions of the answer filed by the defendants from the order denying defendants leave to further amend their answer.

It appears that no error was committed in the entry of either of the orders appealed from and, therefore, the same should be affirmed. It is so ordered.

Affirmed.

BUFORD, C.J., AND WHITFIELD, BROWN AND DAVIS, J.J., concur.

ELLIS AND TERRELL, J.J., not participating.