Williams v. LaPenotiere

Raney, C. J.

That the plaintiff in error has not paid the damages allowed as for a frivolous appeal, by the judgment of this court rendered at the June term, 1889, dismissing the appeal on account of appellant’s omission to file the transcript of the record here within the time required by law, (Williams vs. LaPenotiere, 25 Fla., 473; S. C. 6 So. Reporter, 167,) is no ground for dismissing this writ of error. The appellee, then, who is now defendant in error, has a sufficient remedy for collecting the amount allowed him as damages.

Objections to any part of the record as having been filed here since the writ of error was granted on the appeal transcript then on file here, are not grounds for dismissing the writ of error.

The alleged defect in the service of the scire facias ad audiendmn errores has, if it existed, been cured by the motion made in this court in February last by the attorney who presents the present motion, he acting then as now for the defendant in error, and asking an order that the transcript be sent to him with a view to his ascertaining the necessity of suggesting a dimunition of the record and to complete the same, to the granting of which motion the counsel of record forplaintiff in error assented. This motion constituted an appearance in this court by the defendant in error to the proceedings in error.

The motion should be denied, and the costs of it taxed against defendant in error, and it will be so ordered.