Opinion
November 14, 1950.
Appeal from the Circuit Court, Polk County, D.O. Rogers, J.
King Staufer, Winter Haven, for appellants.
Paul Ritter, Winter Haven, as amicus curiae and formerly counsel for appellee.
The motion to dismiss is granted upon the authority of Ropes v. McCabe, 47 Fla. 289, 36 So. 715.
We do not deem it appropriate at this time to pass upon the question as to whether or not, under the peculiar circumstances of this case, the running of the sixty day appeal period was tolled or suspended by the death of the sole party defendant prior to the expiration of the time within which appeal might have been taken.
ADAMS, C.J., and TERRELL, HOBSON and ROBERTS, JJ., concur.
THOMAS, J., agrees to granting of motion.
CHAPMAN, J., dissents.
SEBRING, J., not participating because of illness.
This cause is before the Court on motion to dismiss on the ground of the death of the party defendant-appellee in an action of ejectment in the Circuit Court of Polk County, Florida. The final judgment in behalf of the defendant-appellee is dated June 2, 1950. Notice of appeal therefrom was entered July 31, 1950 — clearly within the sixty day statutory period allowed for appeals. Counsel for the deceased defendant-appellee, on August 8, 1950, filed in this Court a suggestion of the death on July 24, 1950, of W.S. Moore, defendant-appellee.
Counsel for the defendant-appellee moved this Court for an order or dismissal of the appeal because (1) it was taken after the date of the death of the defendant Moore, and (2) that an appropriate order of revivor has not been made or entered and for these reasons the aforesaid appeal is a nullity and should be dismissed. Briefs pro and con have been filed here by counsel for the respective parties.
It appears that Common Law Rule No. 45, 30 F.S.A., effective January 1, 1950, applicable to ejectment actions pending in the Circuit Courts, is controlling should death occur prior to the time that the Supreme Court acquired jurisdiction on appeal of the controversy. It having been made to appear in this Court that the defendant-appellee, W.S. Moore, died on July 24, 1950, a date prior to the date of the notice of appeal, a revival order should be obtained in the lower court as prescribed by Rule No. 45(c) (1) and (2). Rule 16 of this Court, 30 F.S.A., authorizes a substitution of parties because of the death of a party to a cause on an appeal pending in this Court.
I would deny the motion to dismiss the appeal.