Opinion
April 11, 1950. Rehearing Denied April 24, 1950.
Appeal from the Circuit Court for Martin County, C.E. Chillingworth, J.
Carroll Dunscombe, Stuart, for appellants.
Oughterson Donley and William R. Scott, Stuart, for appellee.
This cause is before the court on a motion to dismiss an appeal taken from a final decree in equity, on the ground that the appellant, who was the original plaintiff in the court below, has failed to pay all costs which have accrued in the court below up to the time of taking the appeal and have been taxed against him.
Prior to the enactment of legislation in 1945 the payment of costs by an original plaintiff as a condition precedent to taking an appeal was required only in an action at law where review of an adverse judgment was sought by writ of error. See section 59.09, Florida Statutes 1941, F.S.A. Chapter 22854, Laws of Florida, 1945, changed the law in this respect by consolidating, revising and amending chapters 59 and 67 of Florida Statutes 1941, relating to appeals in law and equity, respectively, so as to abolish distinctions between writs of error and appeal; by providing that final judgments and decrees of circuit courts should be reviewed by this court only by the method of appeal; and by providing in respect to the payment of costs in the circuit court that section 59.09, Florida Statutes 1941, F.S.A., which theretofore had applied only to appeals from final judgments by writs of error, should be extended to comprehend all appeals, whether from final judgments at law or final decrees in equity.
As now amended the statute applicable to the payment of costs as a condition precedent to appeal provides: "No appeal may be taken by the original plaintiff in any suit or proceeding until he shall pay all costs which have accrued, in or about the suit, up to the time the appeal is taken." See section 59.09, Florida Statutes 1941, F.S.A., as amended by chapter 22854, Laws of Florida, 1945. Compare Akins v. Bethea, 160 Fla. 99, 33 So.2d 638.
In the instant case the record shows that the appellant was the original plaintiff in an equity suit in the circuit court; that costs were taxed against him in the final decree from which he appealed; and that the costs have never been paid.
It is apparent, therefore, that the motion to dismiss the appeal is well founded and should be granted.
It is so ordered.
ADAMS, C.J., and CHAPMAN and HOBSON, JJ., concur.