Summary
finding argument presented without citation or legal authority failed to meet burden of demonstrating error
Summary of this case from Amaro v. StateOpinion
March 26, 1959. On the Merits, May 27, 1959.
Appeal from the Circuit Court for Dade County, George E. Holt, J.
Richard E. Gerstein, States Atty. and Roy S. Wood, Asst. States Atty., Miami, for appellants.
Edward N. Moore, Miami, for appellee.
The appeal in this bond validation suit was taken initially to the District Court of Appeal for the Third District instead of to this Court as required by Amended Article V of the Florida Constitution, F.S.A. vesting in this Court exclusive jurisdiction from final judgments or decrees in proceedings for the validation of bonds and certificates of indebtedness. Thereafter a motion was made in the District Court to transfer the cause here under Florida Appellate Rule 2.1a(5) (d), 31 F.S.A. Oral argument was waived by the respective parties and the matter is now before this Court for consideration.
While there is a stipulation in the record between the parties reciting: "that to prepare and certify a complete transcript of the record herein would be expensive and that the appeal may be considered and heard on the original record," such stipulation is contrary to the requirements of Florida Appellate Rule 4.3 containing the express provision that in bond validation proceedings "a certified transcript of the proceedings shall be filed with the appellant's brief and a copy served on opposing counsel." The purpose of this rule in bond validation proceedings was to provide a simple and expedient method of disposing of these appeals which have priority on our docket and to give this Court a record upon which its judgment may be based. The rule does not permit the use of the original record in such proceedings.
It Is Ordered that the Clerk of this Court return the original record herein to the clerk of the trial court and that the appellants file in this Court, within thirty days from this date, a certified transcript of such proceedings in accordance with Florida Appellate Rule 4.3; else this appeal shall stand dismissed.
TERRELL, C.J., and THOMAS, ROBERTS, DREW and THORNAL, JJ., concur.
On the Merits.
This is an appeal by the State from a final decree of the Circuit Court of Dade County in bond validation proceedings.
Brought under Chapter 75, F.S.A.
The questioned decree validates $225,000 of water revenue certificates of the Town of Sweetwater authorized by Ordinance No. 237 of said Town, dated February 3, 1958, for the purpose of raising funds to pay the cost of constructing a waterworks plant and system in and for said Town, including all incidental, fiscal, legal and engineering expenses and interest during construction.
The State assigns eight errors but, in the opening of its brief, states "[w]ithout waiving any of the assignments of error, appellants consider that the issue raised by the question [hereinafter quoted verbatim] is one that should be specially considered by this Court." The rules provide that errors assigned but not argued shall be deemed abandoned. We, therefore, direct our attention to the sole question argued, namely:
Florida Appellate Rules, Rule 3.7, subd. i, 31 F.S.A. provides inter alia "[s]uch assignments of error as are not argued in the briefs will be deemed abandoned * * *."
"The Community of Sweetwater in Dade County having attempted to incorporate itself as a town under the general laws of the State of Florida relating to cities and towns, and doubts having arisen concerning the validity of such incorporation, the town obtained the passage of a special act of the legislature, Chapter 26469, Laws of Florida, Extraordinary Session, 1949, entitled 'An Act to Validate the Incorporation of the Town of Sweetwater in Dade County', is such town a 'Municipality' within the meaning of Chapter 180, Florida Statutes [F.S.A.] and a 'Town Duly Incorporated Under the Laws of the State' and authorized to avail itself of the provisions of Chapter 180, Florida Statutes [F.S.A.]?"
Appellants' "argument" consists of two paragraphs without citation or authority and which do no more than pose the question and request that this Court furnish the answer. Moreover, the two paragraph "argument" proceeds upon the theory that the burden is upon the Town in this Court to establish the validity of the incorporation of the municipality and therefore the correctness of the decree appealed from.
It is an elemental principle of appellate procedure that every judgment, order or decree of a trial court brought up for review is clothed with the presumption of correctness and that the burden is upon the appellant in all of such proceedings to make error clearly appear. Having wholly failed to meet these elemental requirements of appellate proceedings, the decree appealed from is hereby affirmed.
TERRELL, C.J., and THOMAS, ROBERTS and THORNAL, JJ., concur.