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Driggs v. Higgins-Opinion of Court.

JOHN S. DRIGGS, ADMINISTRATOR OF JOHN S. ADAMS, PLAINTIFF IN ERROR, VS. HENRY S. HIGGINS, DEFENDANT IN ERROR.

1. Twenty-five days must intervene between the issuing of a writ of error and the first day of the term of the Supreme Court to which it is returnable. Where such time did not intervene between the date the writ was issued and the first day of the term, and the scire facias ad audiendum errores was not served twenty-five days "previous to the first day of the term of the Supreme Court" to which it is returnable, the writ must be dismissed for want of conformity to the statutory requirements.

2. A writ of error returnable to a day to which such writs are not returnable by law cannot be amended by inserting a day to which it should have been returnable, such day being now passed, and a service to it being impossible. In such case where there is not a voluntary appearance the writ must be dismissed.

Writ of Error to the Circuit Court for Duval county. The Chief-Justice being disqualified did not sit in this Judge Walker of the Second Circuit was called in in his place.

case.

The facts are stated in the opinions.

C. P. & J. C. Cooper, for Defendant in Error, for the motion to dismiss.

Cockrell & Walker for Plaintiff in Error, contra.

MR. JUSTICE WESTCOTT delivered the opinion of the

court.

A motion is made in this case to dismiss the writ of error on several grounds.

First. Because the scire facias ad audiendum errores was not made returnable with the writ. The writ of error issued December 19, 1881, and was returnable to the 10th day of January, A. D. 1882, the first day of the succeeding

Driggs v. Higgins-Opinion of Court.

term of the Supreme Court. The scire facias issued on the 19th December, 1881, and was returnable to the 10th day of January, 1882, the first day of the succeeding term of the Court Court. This is the record as certified. Why counsel should trouble the court to examine a matter so simple and plain, so patent upon the record as being the reverse of what he states it to be, we cannot see.

Second. Because the scire facias was not served at least twenty-five days previous to the first day of the term of the Supreme Court, to which the writ of error was returnable.

The record discloses that the citation was not served until the 20th December, A. D. 1881. The first day of the next term was January 10, 1882. Twenty-five days did not, therefore, intervene between the first day of the term to which the writ was returnable and the service of the scire facias. Nor were there twenty-five days between the issuing of the writ of error and the first day of the term thereafter. The necessary result is that this writ of error must be dismissed for want of conformity to the statute regulating the issuing and return thereof. It is clear that twenty-five days at least must elapse between the issuing of the writ of error and the first day of the term of this court to which it is returnable. Bacon et al. vs. Hart, 1 Black, (U. S.) 39.

There is here no subsisting writ of error, because the writ issued does not conform to the statutory requirements regulating the subject. Carter vs. United States, 3 Wall., 51; 6 How., (U. S.) 113; 22 ib.. 48; 19 ib., 182.

At a subsequent day of the term the Plaintiff in Error, by Cockrell & Walker, moved to reinstate the cause and for an order to amend the writ of error.

Driggs v. Higgins-Opinion of Court.

MR. JUSTICE WESTCOTT delivered the opinion of the

court.

On the 25th instant, at the instance of the plaintiff, an order was entered in this case opening the judgment and allowing him twenty days wherein to take further action as he might be advised. On the twenty-sixth a motion is made to reinstate the case and for an order to amend the writ of error. Notice of this motion is given and notice of a hearing to be had on the 27th. The defendant in error now files his brief and the plaintiff makes default.

The defect in the writ of error is not amendable in the manner desired. The writ as it now stands is void and illegal. See what is said upon this subject in the opinion rendered in the matter of the motion to dismiss the writ. A writ which is illegal in the matter of the return day to which it is returnable cannot be amended by striking out the day to which by its own terms it is returnable and inserting another day now passed, and to which it is impossible to make it returnable and give it effect by service.

At the hearing of the motion to dismiss the writ of error we did not understand the plaintiff in error to say more than that his action in reference to that motion was in some respects controlled by information concerning the case received by him from the Clerk of this Court. Nothing but a voluntary appearance of the defendant in error, or a waiver of a writ of error, can cure the defect, if indeed the last can. There has been no such appearance and no such waiver. Justice to the parties requires a disposition, of this case before the term expires.

The motion to amend is denied, and there will be judgment dismissing the writ of error.

City of Jacksonville v. Drew-Statement of Case.

THE CITY OF JACKSONVILLE, PLAINTIFF IN Error, vs. CoLUMBUS DREW, JR., DEFENDANT IN ERROR.

1. A municipal corporation, under the general act of incorporation in this State (McClellan's Digest, 247) has the entire control, and supervision of the streets, lanes, avenues, &c., within its corporate limits.

2. An action will lie against a municipal corporation for a special damage, occasioned by its nonfeasance or breach of duty, in failing to keep its streets, &c., in repair. 3 Fla., 19.

3. Bridges within the limits of the corporation are parts of the street within, or upon which they are erected, and are consequently under the control of the municipal authorities in the same manner, and to the same extent as are the other portions of the streets.

4 A municipal corporation is liable in damages to parties receiving special injuries by reason of its non-observance of duty, in the keeping its streets, alleys and bridges in good repair. And it cannot escape its responsibility for such injuries, upon the plea that it had entered into a contract with another party to repair such streets, alleys and bridges.

Writ of Error to the Circuit Court for Duval county. The declaration of the Defendant in Error in this case alleges that the defendant, the City of Jacksonville, before and on the 31st day of March, A. D. 1881, was possessed of and had control of a public bridge over Hogans' Creek, on a certain public street called Washington Street, in the said city, in the county aforesaid, and ought to have kept the same in good and safe repair and condition; yet the defendant, not regarding its duty in that behalf while it was so possessed and had control of the said bridge, to-wit: on the day aforesaid, there wrongfully and negligently suffered the same to be and remain in bad and unsafe repair and condition, and divers of the planks wherewith the said bridge was laid to be and remain loose and shaky, and the

City of Jacksonville v. Drew-Statement of Case.

guard or railing upon the side or edge of said bridge to be and remain unsubstantial, weak and unsafe, by means whereof the plaintiff, who was then and there driving, with due care and diligence, over and upon the said bridge with his horse and buggy; and his horse, backing and slipping on account of the looseness of the said planks, necessarily and unavoidably struck against the said guard or railing, which, on account of its unsafe repair and weak condition, gave way, and the plaintiff, with his driver, horse and buggy, was then and there precipitated and thrown over the edge of said bridge into the said creel:, and thereby his buggy was broken, his harness ruined, and his horse seriously injured and rendered unfit for his use thereafter; his watch and clothing, as well as those of his driver, badley injured, and other actual damage sustained: and also by means of the premises was then obliged to and did lay out divers sums of money, amounting to about one hundred dollars ($100), in endeavoring to temporarily repair the damages to his buggy, &c., and in hiring another buggy and horse until he could procure another horse of his own, and until his buggy was repaired and ready for

use.

To the damage of the plaintiff in the sum of five hundred dollars.

The special or "other" plea referred to in the opinion is as follows:

And for a further plea in this behalf the defendant says that the plaintiff ought not to have his aforesaid action against the defendant, because at the time of the happening of the alleged injuries complained of in the plaintiff's declaration the said Hogans' Creek bridge was being repaired under an independent contract with the Trustees of the Sanitary Improvement Bonds of the City of Jacksonville, a separate and independent body, by one J. C. Cloud, an

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