Berry v. Barnett , 75 Fla. 268 ( 1918 )

Whitfield, J.

Application is made as upon a suggestion of diminution of the record, for a certiorari under Supreme Court Rule 14, to require the transmission to this court of a certified copy of a petition for leave to file a supplement to the answer in this cause, together with, the proposed supplement, notice of filing and hearing and the order of the court denying said petition, the same being on file in the trial court. The affidavit of counsel in support of the application states “that at the time of the preparation of instructions to the clerk of the court below for preparing transcript, numerous matters demanded the attention of affiant, and it appears that affiant failed to instruct the clerk to include the aforesaid petition and order; that appellants’ third assignment of error is predicated upon said petition and order, and unless the missing papers are supplied, the assignment cannot be fairly considered.” Causes for the oversight and delay are set forth.

Supreme Court Special Rule i provides that “it shall be the duty of the appellant, when he applies to the clerk for the transcript of the record in any chancery cause, to file with the clerk of the court whose decree or order is appealed from, a complete assignment of all the errors he intends to rely upon for reversal in the appellate court, and at the same time he shall file a written direction to the clerk indicating the papers and proceedings that are to be copied and made a part of the transcript of the record, and those that are to be recited therein, and also those that are to be omitted therefrom, which written direction shall indicate a date on which the clerk shall commence the making up of such transcript, which date shall be fixed at not less than fifteen days after the date of the filing of such written direction; and a copy of such written direction and assignment of errors shall be served on the appellee or his attorney within five days after it is filed with the clerk. Such assignment of errors, and the assignment of errors, if any, filed! by the appellee, as hereinafter provided, shall be the guide by which the transcript of the record is to be made up. If at the time fixed in such written direction the appellee or his attorney shall not have filed an additional direction to such clerk requiring him to include- in such transcript other matter not required in the written direction of the appellant, the clerk shall prepare the transcript as directed by the appellant; but if the appellee shall within the time fixed file an additional written direction, the clerk shall also include the matters therein directed. If the appellee desires to have any ruling made against him reviewed upon such appeal, he shall within the time prescribed by these rules for filing his additional directions, file a complete assignment of all the errors he intends to rely upon in the appellate court, and serve a copy thereof, together with a copy of his additional directions to the clerk, if he gives any, upon the appellant or his attorney, and the appellant shall have five days’ time thereafter to file additional directions to the clerk, in which case the time within which the clerk is to commence making up the transcript shall be extended for said period of five days. Any failure on the part of the appellant to comply with the foregoing provisions shall be cause for dismissal of the appeal by the appellate court. If the appellee fails to file and serve cross assignments of errors as herein provided, the parties will be confined on the hearing to the consideration of the assignments of error filed by appellant. The clerk shall include in such transcript, at the foot thereof, and immediately preceding his certificate, a copy of all such written directions of the appellant and appellee, and also copies of the assignments of error filed with such written directions.” See Compiled Rules of Practice by Crawley, p. 137; 51 Fla. 31.

As the appellant did not in his directions to the clerk require the papers referred to in this application to be included in the transcript of the record, and as opposing counsel have not agreed to the diminution proceeding, counsel for the appellant should upon proper notice and appropriate proceedings, showing sufficient cause for the omission and delay, seek to amend his directions to the clerk so as to include therein the desired papers, before application is made for certiorari upon suggestion of diminution of the record.

Motion for certiorari denied without prejudice.

Browne, C. J., and Taylor, Ellis and West, J. J., concur.