¶1Disesnting.
¶2I do not agree to the view entertained by the majority of the court that on motions to quash -proceedings in error regularly brought to this court, as provided by statute, on the ground that they are taken merely for delay we should examine the merits of cases as disclosed - by the record before they are regularly reached for final hearing. The act of 1832, approved the 10th of February of that year, provided for the taking of appeals and suing out writs of error to the appellate court and for filing the transcripts of records and assignments of errors therein. It also prescribed the conditions upon which such appeals or writs of error should operate as supersedeases. The thirteenth section of the act provided that when it shall appear to the court of appeals that an appeal has been taken merely for delay the court may assess damages not exced’ing ten per cent, for such frivolous appeal. Subsequently, in 1861, the legislature, by Chapter 1096, amended the pleading and practice in the courts of this State and therein incorporated in substance many of the provisions of the common law procedure act of England, passed in 1852. The fiftieth section of our act of 1861 embodied in part the exact language of a provision of the English procedure act, to- the •effect that courts of error shall have the power to quash the proceedings in error in all cases in which error does not lie, or where they are taken against good faith. It is not claimed that under this last provision it was proper for this court on a motion made under it to take up a •case out of its regular order and look into its merits by ■an examination of the transcript of the record regularly filed here. The authorities cited by Markham and Day, *101on the provision of the English act, show that no such proceeding was had under it. Markham, page .79, sec. 156; Day, p. 172.
¶3The provision in the act of 1832 was construed by this court in 1887, while both acts were in force, and it ■was held that the provision passed in 1832- did not entitle a party to have a case heard in motion hour upon motion to affirm and for damages, and that the case should be heard upon the regular call of the docket like any other case standing for hearing on its merits, and the application for damages be submitted on such hearing and not by motion. Dzialynski v. Bank of Jacksonville, 23 Fla. 44, 1 South. Rep. 338.
¶4It is now supposed that under the revision of the statutes, found in section 1279 Revised Statutes, a different construction should obtain. This section is as follows: “Power to quash writs of error. Courts of error shall have power to quash proceedings in error in all cases in which' error does not lie, or where they are taken against good faith, or merely for delay, and may decree in such cases damages against the plaintiff in error not exceeding ten per cent.” In the same revision writs of error and appeals are made matters of right, and provisions are made for their prosecution to this court, and for the filing of transcripts of record and assignments of errors. Parties obtaining judgments or decrees are protected by requirements that writs of error or appeals from them shall not have the effect to stay their enforcement unless superseded by bonds to be executed as specifically provided. Secs. 1270, 1272, 1275, 1276, Revised Statutes.
¶5It is further provided by section 1277 that “it shall *102be the duty of the court on an appeal or writ of error to examine the record, to reverse or affirm the judgment, sentence or decree oRthe court below, or give such judgment, sentence or decree as the court below ought to have given, as to it may appear .according to law.” This court is also given power to prescribe rules for the submision of causes on appeal or writ of error, and rules for this pupose have been made.
¶6It is the purpose and policy of the provisions referred to, I think, that cases regularly brought to this court in the manner thereby provided shall be heard and passed upon as to their merits in due and regular course of adjudication of causes submitted for decision, and this purpose and policy should be kept in mind in construing other provisions bearing- upon a summary disposition of cases. When the appellate proceeding is irregular, or it can be safely affirmed that error does not lie, or when taken against good faith within the meaning of the law on that subject, the policy of our statutes as to a regular hearing- on the merits in due course of procedure is not contravened by a quashal or summary disposition, but it is otherwise when we undertake to deal by summary motion with cases as to their merits. I have not been able to bring myself to believe that the legislature ever contemplated that on a motion' to quash an appellate proceeding on the ground alone that it was taken for delay, as evidenced by a want of merit disclosed by the record, this court should take the case up out of its order and examine it, and I dQ not see that such construction is forced upon us by the compilation of section 1279 of the Revised Statutes. In construing this revision we-, have a guide furnished in the act under which it was au*103thorized. It provides that the commissioners shall “revise, simplify, arrange and consolidate all the public statutes of England, of the Territory and of the State of Florida, which are general and permanent in their nature, and which shall be in force in this State at the time such commisioners shall make their final report, and that in the performance of such duty they shall carefully collect and reduce into one act the different acts and parts of acts which, from similarity of subject, ought, in their judgment, to be consolidated arranging and distributing the same under such titles, chapters and sections, or other suitable divisions and subdivisions as they shall deem proper, with head notes briefly expressive of the matter contained in such divisions or subdivisions, an'd als!o with side notes, so drawn as to indicate the contents of the text, and with references to the original text from which each section shall have been compiled, and to the published decisions of the courts of this State, expounding or construing the same, and in every other respect they shall complete the said revision in such a manner as to them shall seem most useful and proper, to render the said acts more plain, concise and easy to be understood ; provided, that no changes' shall be made in the phraseology of any statute that has been the subject of judicial decision by which the construction thereof, as established by such decision, shall or can be impaired or affected.” It is also further provided in so submitting a report of their work to the legislature they should suggest such contadictions, omissions and imperfections as may appear in the original text of the acts, and the mode in which they shall have reconciled, supplied and amended the same; and they were authorized tO' designate such *104acts or parts of acts as, in their judgment, ought to be repealed, and to recommend the passage of such new acts or parts of acts as, in their judgment, may appear necessary, either in lieu of or in addition to any of the acts so revised and consolidated. Chapter 3905 laws of 1889. There is no doubt that section 1279 of the Revised Statutes is a consolidation of the parts of the acts of 1832 and 1861 referred to, as shown by the marginal notes in printed statutes, and the case of Dziaynski v. Bank is cited as bearing upon the construction of the act. It is true that the commisisoners reported in some instances new matter which they incorporated into the revision submitted, and in such cases the new matter has been declared by this court to be law equally with the former law revised, not because the commissioners reported it, but because it has been constitutionally enacted by the legislature as law; but where no new matter has been included in the revision and the old law has not been consolidated in such way as to make it impracticable to carry out the legislative mandate that no change shall be made in the phraseology of any statute that has been the subject of judicial decision by which the construction thereof, as established by such decision shall or can be impaired or affected, the court should,’ in furtherance of the manifest and leading purpose of the revision, adhere to the established judicial construction placed upon the former statutes. This revision, it should be kept in mind, was not an enactment of a new body of statutory law, but in the main a consolidation, simplification, and orderly arrangement of existing statutes. It has repeatedly been held by this court, since the revision, that the merits of a cause as disclosed by the transcript would not be ex*105amined into by motion to dismiss on the ground that the appeal or writ of error was taken merely for delay, and this view is still to be adhered to, it seems. The majority of the court now decide that when the motion in terms is to quash proceedings- in error on the ground that they are taken merely for delay, an examination must be made of the merits contained in the transcript, though it is clear, I think, that the original provision to quash proceedings in error, from which the revision is made, never contemplated a hearing on the merits. It was originally, and still is in its present form, aimed, in my judgment, at an unauthorized resort to and an abusive use of appellate procedure, and was not designed to take the place, of a regular hearing and determination of a cause brought up and presented as provided by statute and the rules of the court. Where error does not lie, a resort to the appellate court is, of course, out of place. Where it is made to appear by collateral proof that a party in using the forms of .appellate procedure is doing so against good, faith they may be overthrown, and where it likewise appears that an appeal has been taken merely for delay it may be quashed. If Ave go into the merits shown by the transcript on motion to quasli on the ground that the appeal was taken merely for delay, why not make the same examination when the appeal is alleged to have been taken against good faith? The appellate procedure devised by our statutes contemplated that causes would be heard and determined without any other delay than that incident to a due and regular; presentation of them, and, of course, a congested condition of the docket can not change the meaning, of statute.
¶7The limited scope giA-en to the motion to quash does *106not, in my .judgment, remove the objections to such a remedy of reaching the merits of a cause. The appellee or defendant in error may at his pleasure move to quash on the ground that the apppeal or writ of error is taken merely for delay, though he may not be heard in argument on the motion, and the court must stop and go into the merits out of regular order to determine the motion. This in my judgment was not contemplated. The court will make only a cursory examination of movant’s case to see if no question requiring examination is presented. A cursory examination of the merits of a case is not consistent, I think, .with the policy of our law, and mistakes may unintentionally be made in such examination, though it may be said that, under the rule formulated, the liability to err is against the movant. I do not believe that we are authorized under our statute to establish such a rule. As I do not favor the construction now placed upon the statute or the mode of procedure under it, I have deemed it proper to indicate to this extent my views on the subject.