Jones v. Escambia Land & Manufacturing Co. , 55 Fla. 783 ( 1908 )

Hocker, J.

—M. B. Jones, Josiah Jones, Alpeous Jones, Margaret West, Eliza Polk, W. B. Polk, Jefferson Jones, B. T. Jones, Mattie Botts and J. W. Botts, filed a petition in the circuit court of Santa Rosa county for the establishment of a lost deed alleged to have been executed in 1833 by one James Brewster, conveying certain lands to one Cleopatra Jones under and through whom] the petitioners claim. It is alleged in 'the petition that the petitioners and ■ the Escambia Land and Manufacturing Company, Mf. Lindsey, W. B. Aycock, B. F. ‘ Williamson and J. Earle Williamson, partners as Aycock & Williamson, are the persons and only persons known to petitioners interested for or against the re-establishment of said paper. Notice to show cause was given by publication. 'M. Lindsey answlered the petition, denying upon (information and belief the execution of the alleged deed, and that it had been lost or destroyed. Testimony was taken by agreement, and upon a hearing the circuit judge made an order in which he states that the testimony fails to establish the alleged lost deed and dismissed the petition at the cost of the petitioners. An appeal was taken from this order, which was entered in the chancery order book.

It -is contended by the appellees that an appeal is not the proper method of bringing the case to this court for review.

This proceeding is evidently based on sections 1997, 1998 and 1999, of the General Statutes of 1906. This court has recently held in effect that proceedings to reestablish lost proceedings or papers in a pending -suit, will be either common law or chancery according to the character of the pending suit. Florida Cent. R. Co. v. Bostwick, 53 Fla. 124, 44 South. Rep. 31; Florida Central & Western R. R. Co. v. Bostwick, decided at the present termi. But it is. established in other cases where statutory remedies are given, and it is not expressly provided that the method of reviewing orders made therein shall be by appeal—then the only manner of obtaining a review by this court is by writ of error. Clinton v. Colclough, 54 Fla. 520, 44 South. Rep. 878; Heebner v. Orange City, 44 Fla. 159, 32 South. Rep. 879.

In the case of Campbell v. Skinner Mfg. Co., 53 Fla. 632, 43 South. Rep. 874, the remedy by writ of error in such a case is recognized. The sections of the General Statutes referred to do not provide for a review of the orders of the circuit court by appeal, and therefore the appeal in the instant case must be dismissed. Montgomery v. Thomas, 40 Fla. 450, 25 South. Rep. 62; Trabue v. Williams, 46 Fla. 228, 35 South. Rep. 872.

Taylor and Parichill, JJ., concur;

Shackleford, C. J., Cockrell and Whitfield, JJ., concur in the opinion.