POSEY v. FORD MOTOR COMPANY, 125 So.2d 108 (Fla.App. 1 Dist. 1960)

EDSEL POSEY, APPELLANT, v. FORD MOTOR COMPANY, A CORPORATION, AND A. BRUCE CARR, INDIVIDUALLY AND DOING BUSINESS AS PENSACOLA TRACTOR COMPANY, APPELLEES.

No. C-237.District Court of Appeal of Florida, First District.
December 8, 1960.

Appeal from the Court of Record of Escambia County.

Merritt, Jackson, Anderson Henderson, Pensacola, for appellant.

Robert P. Gaines and Henry R. Barksdale, of Hahn and Barksdale, Pensacola, for appellees.

PER CURIAM.

We are confronted with a motion of appellee Ford Motor Company to quash this appeal on grounds that it is frivolous and in support thereof appellee asserts that appellant has failed to argue any of his assignments of error and has therefore abandoned them.

The record on appeal has not been filed in this court nor is it due under the rule (Rule 3.6, subd. j(1) F.A.R., 31 F.S.A.). All that is before this court is the notice of appeal, the appellant’s brief and appellee’s motion, which is not supported by any portion of the record by which the propriety of the motion can be determined. Specifically, the record here does not contain a copy of the assignments of error.

While we find that appellant’s brief does not make an appropriate reference to the assignments of error upon which the statement of questions involved on appeal is predicated, as required by Rule 3.7, subd. f(4), F.A.R., the questions stated and the argument addressed clearly infer that the assignments of error are directed to bring about a review of the action of the trial court in dismissing appellant’s complaint on the ground that it failed to state a cause of action. In that aspect of the situation and considering appellee’s failure to provide this court with the necessary documents required to intelligently act on the motion, we are not inclined at this stage to visit upon appellant the harsh relief sought by the motion.

Page 109

The motion to quash is denied, without prejudice to renew it upon an appropriate showing.

WIGGINTON, C.J., and STURGIS and CARROLL, DONALD, JJ., concur.