
    Max KAGAN, Appellant, v. BLUE OCEAN VILLAS, INC., a Florida Corporation, Appellee.
    No. 59-743.
    District Court of Appeal of Florida. Third District.
    Feb. 11, 1960.
    Rehearing Denied March 8, 1960.
    
      Myers, Heiman & Kaplan, Miami, for appellant.
    L. J. Cushman and Henry L. Balaban, Miami, for appellee.
   HORTON, Chief Judge.

This was an appeal from a final judgment in a landlord-tenant proceeding, in which the appellee was successful in obtaining a judgment of possession against the appellant of certain real property.

The appellee has moved to dismiss the appeal in this court upon the ground that the appellant has failed to comply with subsection (1) of § 83.27, Fla.Stat., F.S.A. The pertinent portion of subsection (1) of § 83.27, supra, reads as follows:

“Before such appeal shall be granted, the party appealing shall make oath in writing before said judge that said appeal is taken in good faith, and not for delay, and shall * * * pay all costs incurred in the trial before said judge and in the taking of said appeal.” [Emphasis supplied]

Briefs were filed by the respective parties in support of and in opposition to the motion to dismiss and the court heard oral argument on said motion.

The appellee contends that the appellant has failed to comply with that' portion of § 83.27, supra, quoted above, in that a person other than the appellant filed an affidavit sworn to before a notary public, and that such did not constitute a compliance with the statute. The appellant, on the other hand, contends first, that the portion of the statute in question has been repealed by a series of subsequent legislative acts and/or rules of procedure prescribed by the Supreme .Court of Florida pursuant to its inherent or constitutional authority, and secondly, that even if the statute has not been repealed, the affidavit required by the statute to be made could be made by the party or his attorney before a notary public and not in the presence of the judge who heard the cause in the trial court. Additionally, the appellant argues that if the statute is to be construed as written, then it would be unconstitutional as contravening § 12 of the Declaration of Rights of the Florida Constitution, F.S.A., and the 14th Amendment to the United States Constitution.

We have carefully considered the briefs of the respective parties, together with the oral arguments, and conclude that the motion should he granted.

This court has heretofore, in the case of Placid York Co., Inc. v. Calvert Hotel Company, Fla.App.1959, 109 So.2d 604, concluded that § 83.27, supra, governed appeals in landlord-tenant cases and that although the provisions of such statute may be harsh in their application, nevertheless, we concluded that the remedy lies with the legislature rather than the courts. Likewise, in this instance, where a specific statutory requirement leaves little, if any, area of doubt as to the legislative intent, a contrary construction of such statute would amount to no less than legislation under the guise of judicial fiat. If the legislature had intended that the affidavit could be made by any person before any officer authorized to administer oaths, we believe that they would not have chosen the restrictive language used in this statute.

Accordingly, the motion to dismiss is granted and the appeal is dismissed.

CARROLL, CHAS., J., concurs.

PEARSON, J., dissents.

PEARSON, Judge

(dissenting).

While it is true that in Placid York Co., Inc. v. Calvert Hotel Company, cited in the majority opinion, this court recognized the binding effect of section 83.27, Fla.Stat., F.S.A., in landlord and tenant appeals, yet the holding that such appeals are dependent Upon the personal appearance of the appellant before the trial judge does not necessarily follow. To apply this provision to prohibit an appeal by a party who is not physically present in the jurisdiction, since this is the practical effect of the interpretation given, is of doubtful constitutionality. The purpose for the provision upon its passage in 1881 could have been only to insure good faith in the appellant. The section as originally enacted provided for a trial de novo in the circuit court. The requirement of physical presence cannot aid in the accomplishment of this purpose and can only deprive absent parties of the right of appeal.

In 1881 the constitution of the State of Florida did not give an appeal, as a matter of right. It was amended in 1957, to make appeals a matter of right. Cf. First Nat. Bank of Orlando v. King, 36 Fla. 25, 18 So. 1. It is my view that to require every appellant under section 83.27(1), Fla. Stat, F.S.A., to be personally present before the trial court is an unreasonable abridgment of the right granted by the constitution. In addition it seems to me to contravene the sense of Rule 1.5(a), Florida Rules of Civil Procedure, 30 F.S.A., and Rule 2.3(d), Florida Appellate Rules, 31 F.S.A. 
      
      . Chapter 3248, § 7, Laws of Florida.
     
      
      . See footnote 1, supra.
     
      
      . Art. 6, § 5, Fla.Const. (1868), 3 Fla.Stat. p. 182 (1941), McClellan’s Digest, p. 32, 25 F.S.A. p. 421; amended in 1875, 3 Fla.Stat. p. 192 (1941), McClellan’s Digest, p. 64, 25 F.S.A. p. 444. See also Chapter 2041, Art. 9, Laws of Florida (1875).
     
      
      .Art. 5, § 5(3), Fla.Const., 26 F.S.A. “Jurisdiction. Appeals from trial courts in each appellate district, and from final orders or decrees of county judge’s courts pertaining to probate matters or to estates and interests of minors and incompetents, may be taken to the court of appeal of such district, as a matter of right, from all final judgments or decrees except those from which appeals may be taken direct to the supreme court or to a circuit court.”
     