
    Mark ABRAHAMS, Appellant, v. MIMOSA COMPANY, Ltd., etc., et al., Appellees.
    No. 65-90.
    District Court of Appeal of Florida. Third District.
    April 20, 1965.
    Jay M. Lurie, Miami, for appellant.
    Dean & Adams and Jeanne Heyward, Miami, for appellees.
    Before BARKDULL, C. J., and CARROLL and HENDRY, JJ.
   PER CURIAM.

This matter comes on to be heard before’ the court on the appellees’ motion to dismiss this appeal for failure to supersede the order taxing costs against the appellant [the original plaintiff in the trial court].'

In determining this motion, we are required to examine the provisions of Rule 3.2, subd. f, Florida Appellate Rules, and Rule 5.5, Florida Appellate Rules, 31 F.S.A., in order to determine which of said, rules is applicable to an appealing plaintiff who is assigning error in the taxing of costs. In reaching our determination, the rules of court must be construed as statutes are construed. See: Hoodless v. Jernigan, 46 Fla. 213, 35 So. 656; Florida Land Rock Phosphate Company v. Anderson, 50 Fla. 501, 39 So. 392; 2 Fla.Jur., Appeals, § 6. At the outset, it must be noted that Rule 5.5, Florida Appellate Rules, is a general rule whereas Rule 3.2, subd. f is a specific rule and, ordinarily, the specific will prevail over the general. See: Adams v. Culver, Fla.1959, 111 So.2d 665; Woodley Lane, Inc. v. Nolen, Fla.App.1962, 147 So.2d 569; 30 Fla.Jur., Statutes, § 115. We hold that-the time for filing a supersedeas bond, in connection with an assignment of error directed to a cost judgment, is within the time provided by the rules of order of court providing for the filing of an assignment of error. It has previously been held by appellate courts in this State that the appellee may waive his right to move to dismiss an appeal for failure to pay costs, by filing cross-assignments, cross-directions, entering into stipulations or filing his brief. See: Berg v. New York Life Insurance Company, Fla.1955, 81 So.2d 630; Frisch v. Gabriel, Fla.App.1961, 134 So.2d 545; Adams v. Setzer’s Super Stores, Fla.App. 1962, 145 So.2d 893. Therefore, if these cases hold that the appellee may waive his ground for dismissal of a cause at this early stage of an appellate proceeding [such as the time for filing cross-directions] then certainly the appellant must be in default by failing to post the supersedeas.

From a reading o-f the rules, it appears logical that if the appellant is required to pay costs prior to filing an appeal [if he is not going to assign them as error] then, certainly [if he does assign them as error] he should have to post the bond within the time limit for filing his assignments. To adopt the view that Rule 5.5, Florida Appellate Rules, applies would, in effect, bar any appellee from ever having the right to test the propriety of an appellate proceeding for non-payment of costs, because he is required to file his cross-directions, cross-assignments and brief all prior to the time that the record on appeal is lodged in an appellate court, which is the time limit fixed in Rule 5.5, Florida Appellate Rules.

Therefore, finding that the appellant [who was the original plaintiff in the trial court] has failed to pay the costs prior to filing his notice of appeal and has failed to supersede them [even though assigned as error within the time of filing of his assignments of error], we grant the motion to dismiss.

Appeal dismissed.

CARROLL, Judge

(dissenting).

Rule 3.2, subd. f, F.A.R., which requires an original plaintiff to prepay adjudged costs as a condition of taking an appeal, has a proviso dispensing with the requirement when the appealing plaintiff “has assigned” the costs as error and “has superseded” the cost order.

In the majority opinion the court treated “has assigned” as though it read “shall have assigned as error the taxing of costs within the 10-day period allowed in appellate rule 3.5, subd. a for the filing of assignments of error.” But the court treated the further requirement of “has superseded” differently, and held it must be done within 10 days although the appellate rules allow a substantially longer period.

Under Florida Appellate Rules the time within which supersedeas may be perfected is 110 days. Rule 5.5 for supersedeas says “at any time prior to filing the record-on-appeal in the [appellate] Court.” Rule 3.6, subd. j(l) provides that the record-on-appeal shall be transmitted to the appellate court 110 days after the notice of appeal. The majority opinion, in effect, amends rule 5.5 when applied to supersedeas of cost judgments, by holding that in order for a supersedeas to be effective under the proviso in the cost rule it must be perfected within 10 days, instead of within a period of 110 days as the appellate rules allow.

I am unable to join in that holding of the majority. First, it does not appear to be consistent to hold that “has assigned,” as contained in the proviso in the cost rule, is complied with by assigning error any time within the 10 day period allowed in the appellate rules for filing assignments of error, and at the same time to hold that the requirement of “has superseded” must be complied with by perfecting supersedeas in less time than is allowed by the appellate rules. Secondly, any change or amendment of an applicable appellate rule should be made only by the Supreme Court of Florida, where the Constitution placed the rule-making power (Art. V, § 3, F.S.A.).

Thirdly, the reason assigned by the majority for such action was that an appellee might be held to have waived a right to dismiss by filing pleadings, etc. That reason lacks validity because no such waiver would result. This is so because at the time an appellee files such pleadings (following timely assignment and pending expiration of time in which to supersede) he has no right to dismiss the appeal for nonpayment of costs. Such a right, if it accrued, would arise at the end of the period allowed for perfecting supersedeas, if not perfected by that time. Waiver is defined in Black’s Law Dictionary as “the intentional or voluntary relinquishment of a known right; or such conduct as warrants an inference of the relinquishment of such right.” The filing of pleadings by an appellee at times specified by rule or court order or stipulation, when no right to dismiss the appeal is present, would not be a basis to infer intent of an appellee to waive a right to dismiss the appeal which could arise thereafter. In the three waiver cases cited in the majority opinion, the right to dismiss for nonpayment of costs accrued and was established before the appellee filed the papers or took the action from which there was inferred an intent to relinquish a (matured) right to dismiss. Moreover, if such action by an appellee would operate as a waiver, that effect could be obviated by an appellee by the simple expedient of including in any such pleading or brief a statement that it was filed “without prejudice to move to dismiss for nonpayment of costs,” or language of similar import.

Fourthly, appellants and their attorneys should be entitled to rely on the appellate rules as they read, or as they may be amended and made to read from time to time by the Supreme Court in the exercise of its rule-making power. A chang-e of' an appellate rule by a holding in a court opinion could create a trap, particularly where the change shortens the time which the published appellate rules provide for performance of an act upon which the right to maintain an appeal depends.

Therefore, I respectfully dissent, and because an assignment of error as to the costs was timely filed and the period allowed by the appellate rules for perfecting super-sedeas has not elapsed, I would deny the motion to dismiss. 
      
      . “Payment of Costs by Original Plaintiff. No appeal may be taken by the original plaintiff in any suit or proceeding until lie shall have first paid all costs that have accrued in and about the suit, and have been specifically taxed against him, up to the time the appeal is taken; provided, that nothing contained herein shall require the prepayment of costs by the original plaintiff when he has assigned as error the taxation costs a-nd has superseded the order, judgment or decree specifically taxing the same; provided further, that in those instances where the costs are not settled until after the notice of appeal is filed, the party obligated shall be required to pay the same within ten (10) days upon written demand, otherwise said appeal shall be dismissed upon motion.”
     
      
      . “Motion and Order for Supersedeas to Stay Final Judgment.
      “If a party desires to supersede a final decision, judgment, order or decree, he shall, at the time the appeal is taken, or at any time prior to filing the record-on-appeal in the Court, apply to the lower court for an order fixing the amount, terms and conditions for good and sufficient bond to be payable to the adverse party.”
     