All Florida Sur. Co. v. Coker

• Decision Date: 27 April 1955
• Citation: 79 So.2d 762
• Parties: ALL FLORIDA SURETY COMPANY, a Florida corporation, Appellant, v. Ralph H. COKER, d/b/a Coker Plumbing, and Olin P. Wright, and H. O. Barber, Appellees.
• Court: Florida Supreme Court

Page 762

79 So.2d 762

ALL FLORIDA SURETY COMPANY, a Florida corporation, Appellant, v. Ralph H. COKER, d/b/a Coker Plumbing, and Olin P. Wright, and H. O. Barber, Appellees.

Supreme Court of Florida, Division A.

April 27, 1955.

Henry L. Balaban, Chicago, Ill., and Thomas A. Horkan, Jr., Miami, for appellant.

John Ruff, Miami, for Ralph H. Coker.

Turner & Hodson, Homestead, for Olin P. Wright.

SEBRING, Justice.

H. O. Barber was the general contractor on a building project in Dade County, Florida. Barber defaulted on the contract and his surety, All Florida Surety Company, a corporation, expended the sum of $7,500 for the completion of the contract, attorneys' fees and costs. Thereafter, on March 31, 1954, the surety company instituted an action at law against the general contractor, and Olin P. Wright, Anthony A. Harper and Ralph Coker, who were subcontractors on the job, to recover upon an indemnity bond given by them for the performance of the contract.

On April 17, 1954, the defendant Coker instituted a suit in equity against the surety company and Barber, the general contractor, to have cancelled the indemnity bond which, so he alleged, the subcontractors had signed under the mistaken impression that the bond was given merely to secure the performance of their own subcontracts when in fact the surety company had claimed that the bond had the effect of making the subcontractors partners with the general contractor in respect to the performance of the entire general contract.

Thereafter, on April 19, 1954, the defendant, Olin P. Wright, filed a suit in equity against the surety company and the general contractor seeking the same relief that was being sought by the defendant Coker in his equity suit instituted on April 7, 1954.

Apparently, by reason of a stipulation the exact nature and terms of which are not shown by the record, the equity causes were comsolidated and referred to a special master for the taking of testimony and, according to the report of the special master, 'the file in the law action was also submitted * * *. However, the special master takes the position that there has been no lawful reference of this law action to him and that he is without jurisdiction to hear and determine the same.'

In due course the master's report was filed finding the equities to be with the plaintiffs and against the general contractor and his surety and a final decree was entered in the chancery causes in conformance with the report. So far as we are advised by the record, no final disposition has ever been made of the common law action, which was between the same parties and involved the same subject matter as the equity suits. In the final decree in the equity cause the trial court found, so far as is material here, that the plaintiffs in the chancery suits were not indebted to the surety company on the indemnity bond and that the same should be cancelled; that the special master 'is hereby awarded a special master's fee in the amount of $500.00;' that 'the costs in this cause are hereby assessed against the defendant, H. O. Barber (the general contractor);' and that 'upon the failure of H. O. Barber to pay (the costs) upon demand * * * said costs shall be paid by All Florida Surety Company * * * for which let execution issue.'

The surety company, on March 15, 1955, filed a notice of appeal from the final decree and, on the same day, filed in the trial court a motion for a supersedeas bond, alleging therein that the decree was 'in whole or in part other than a money decree' and praying that the trial court fix the amount and conditions of the bond to be filed in order for its appeal to operate as a supersedeas. The motion was denied.

Subsequently, on March 24, 1955, the plaintiffs filed in the trial court a 'Motion to Dismiss the Notice of Appeal and Appeal;' alleging therein that All Florida Surety Company and H. O. Barber, the general contractor, had been the plaintiffs in the original law action against the subcontractors; that by stipulation of the parties the law action had been consolidated for trial with the chancery suits in which the subcontractors were plaintiffs; that H. O. Barber and All Florida Surety Company had refused to pay the costs of suit in the consolidated suits out of which the final decree appealed from arose, as required by the trial court in the final decree; and accordingly, that the notice of appeal and the appeal should be dismissed.

When the motion came on for hearing the trial court found that the general contractor, Barber, and the All Florida Surety Company had failed to pay the costs of the litigation, as required by the terms of the final decree and the provisions of section 59.09, Florida Statutes, F.S.A., and decreed that the notice of appeal and the appeal should be dismissed 'subject, however, to the payment of the costs as required by the Final Decree * * * in which event said Notice of Appeal and Appeal...