Cheyney v. Trammell

Decision Date20 May 1913
Citation65 Fla. 451,62 So. 916
PartiesCHEYNEY et al. v. TRAMMELL, Governor.
CourtFlorida Supreme Court

On Rehearing, June 9, 1913.

Error to Circuit Court, Pinellas County; F. M. Robles, Judge.

Action by Park Trammell, as Governor of the State of Florida against John K. Cheyney and another. Judgment for plaintiff and defendants bring error. Affirmed, and rehearing denied.

Syllabus by the Court

SYLLABUS

In the General Statutes of 1906 two different methods are provided for enforcing the collection of an appearance bond in a criminal case. Section 3948 provides for a suit on the bond by the prosecuting officer, and section 3949 provides for the collection of such a bond by an estreatment proceeding. Where the former method is adopted, it is not necessary to allege in the declaration that the sureties were called upon to produce the body of the principal obligor, as the gist of the action is the giving of the appearance bond and the failure of the person charged with the criminal offense to appear as he agreed to do.

Under the statute (section 963, G. S. 1906) the proceeds of all forfeited bail bonds or recognizances are paid into the fine and forfeiture fund of the county in which the indictment was found or the prosecution commenced, and judgment therefor should be entered in favor of the state for the use of the particular county.

Where a party is convicted of crime and gives a supersedeas bond conditioned for his appearance at the next term of the circuit court in which he was convicted, to answer and abide the final order, sentence, or judgment of the Supreme Court in the premises, such a bond is a 'bail bond,' within the meaning of section 963 of the General Statutes of 1906.

Where an action is brought on an alleged forfeited bail bond, which is attached to the declaration as an exhibit, but not made a part of the declaration, an alleged variance between the conditions of the bond and the allegations of the declaration are not available on demurrer to the declaration.

A supersedeas appearance bond, which provides that the convicted party should be personally forthcoming at the next term of the circuit court held in the county where the conviction occurred 'on the second Tuesday in September 1912, to answer and abide the final order, sentence or judgment that might be passed in the premises by the said Supreme Court,' and that term of the court was the term at which the convict should, under the law, as well as under the terms of the bond, appear, is not fatally variant from the statute (section 4047, Gen. St. 1906) because it names the term of the circuit court at which the convicted party is to appear.

Where a convicted party gives a supersedeas bond, as he is allowed to do under sections 4047 and 4048, Gen. St. 1906, no order of court is necessary to make the supersedeas effective, except that the party, if then in custody, cannot be discharged from custody without an order of court, as provided in section 4049, Gen. St. 1906.

COUNSEL Wall & McKay, of Tampa, for plaintiffs in error.

H. S. Phillips, of Tampa, for defendant in error.

OPINION

HOCKER J.

This action was originally brought by Albert W. Gilchrist, as Governor, for the benefit of Pinellas county, and afterwards Park Trammell, the present Governor, was substituted as plaintiff. Demurrers to the declaration were overruled, and final judgment entered in favor of the defendant in error. The case is here on writ of error from the final judgment. The declaration is as follows:

'Albert W. Gilchrist, Governor of the state of Florida, who sues for the benefit of Pinellas county, plaintiff, by his attorney, H. S. Phillips, state attorney of the Sixth judicial circuit of the state of Florida, sues Jose R. Fuentes, as principal, and Carl Doerler and John K. Cheyney, as sureties, defendants, for that whereas on the 15th day of February, A. D. 1912, in a certain cause then and there pending in the circuit court of Pinellas county, Florida, wherein the state of Florida was plaintiff and the said Jose R. Fuentes was defendant, judgment was rendered against the said Jose R. Fuentes, sentencing him to confinement for a period of five years at hard labor in the state prison; and for that whereas the said defendants in and by their writing obligatory, signed and sealed with their seals bearing date February 19, 1912, jointly and severally acknowledged themselves to be held and firmly bound unto the plaintiff herein in the penal sum of two thousand dollars well and truly to be paid to the plaintiff herein, which said writing obligatory was and is subject to a certain condition therein written, whereby, after reciting to the effect that on the 14th day of February, 1912, in the circuit court of Pinellas county, Florida, in a certain cause therein pending wherein the state of Florida was plaintiff and Jose R. Fuentes was defendant, the said Jose R. Fuentes being then and there charged with manslaughter, he, the said Jose R. Fuentes, was duly convicted and by the said court sentenced to confinement for a period of five years at hard labor in the state prison, from which said judgment ans sentence of the court the said Jose R. Fuentes sued out a writ of error to the Supreme Court of the state of Florida; and whereas it was further provided in said condition of said writing obligatory that if the said Jose R. Fuentes should be personally forthcoming at the next term of circuit court held in Pinellas county on the second Tuesday in September, 1912, to answer and abide the final order, sentence, or judgment that might be passed in the premises by the said Supreme Court as by said writing obligatory and the said condition thereof remaining as filed in said circuit court will appear, reference being had to a certain certified copy of said bond hereto attached and marked 'Exhibit A,' and although afterwards, to wit, on the --- day of -----, 1912, the said Supreme Court holden at Tallahassee, the said cause coming on to be heard by the said Supreme Court, it was considered by the said Supreme Court that the said judgment of the said circuit court in the said writing obligatory mentioned be affirmed, and that said plaintiff herein recover of and from the said Jose R. Fuentes, party defendant herein, all costs expended by the plaintiff herein in said cause by reason of said appellate proceedings, taxed at the sum of $-----, as by the mandate of said Supreme Court upon record in the office of the clerk of the circuit court in Pinellas county, Florida, aforesaid, in Minute Book -----, at page --- will appear, nevertheless the said Jose R. Fuentes was not personally forthcoming at the said term of the circuit court in Pinellas county, Florida, held in and for said county on the second Tuesday in September, 1912, to answer and abide the final order and judgment passed in the premises of said Supreme Court as in and by said writing obligatory, he, the said Jose R. Fuentes, as principal, and the said Carl Doerler and John K. Cheyney, as sureties, defendants therein, obligated themselves he should and would be: Wherefore an action has accrued to the said plaintiff to demand of said defendants the said sum of two thousand dollars and interest thereon, together with the sum of $----- expended by the plaintiff by reason of said appellate proceedings, yet said defendants, though requested, have not paid the said sum of money or any part thereof to the plaintiff, but refuse so to do, to the damage of the plaintiff in the sum of four thousand dollars. Wherefore plaintiff sues.

Herbert S. Phillips,

'State Attorney for Sixth Judicial Circuit, State of Florida, Attorney for Plaintiff.'

This declaration was demurred to on seven grounds, as follows:

'First. The said declaration fails to state a cause of action against these defendants.

'Second. That said declaration fails to show that after the alleged breach of the obligation sued upon these defendants were called upon to produce the body of the principal obligor therein, and that upon failure to do so the said bond was estreated by due order of the court.

'Third. Because said declaration fails to show the right or authority by which the plaintiff is entitled to maintain his said action.

'Fourth. Because the declaration fails to show affirmatively that the conditions of said obligation have been breached in such manner as to entitle plaintiff to maintain his said action.

'Fifth. Because the obligation sued upon, and which is made a part of the declaration by reference, is not a statutory form of supersedeas bond.

'Sixth. Because the declaration fails to show the authority of C. W. Weicking, clerk of the circuit court for Pinellas county, to approve the said bond.

'Seventh. Because the said declaration fails to show that said bond was made under authority of any lawful order of the court.'

This demurrer was overruled, the fact of nonservice of Jose R. Fuentes noted in the record, and, the defendants declining to plead further, final judgment was entered for the plaintiff. The assignments of error are based on the order overruling the demurrer and on the giving final judgment for the plaintiff below.

Under the first assignment the several grounds of the demurrer to the declaration are presented. The first is not especially argued in the brief, 'inasmuch as,' to quote from the brief of plaintiffs in error, 'the more specific grounds thereafter incorporated in the demurrer will point out the defects...

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5 cases
  • Fulghum v. State
    • United States
    • Florida Supreme Court
    • August 21, 1926
    ...Mining & Mfg. Co., 84 F. 114, 28 C. C. A. 292; State v. Wotring, 56 W.Va. 394, 49 S.E. 365; 9 C.J. 24, 33. See, also, Cheney v. Trammell, 65 Fla. 451, 62 So. 916. as was said in J. B. McCrary Company v. Dade County, supra, a surety's obligation will be strictly construed, and will not be ex......
  • Cash v. State
    • United States
    • Florida Supreme Court
    • July 20, 1954
    ...agree with this contention. As related to criminal proceedings a supersedeas bond is simply a bail bond by another name. Cheyney v. Trammell, 65 Fla. 451, 62 So. 916; Craton v. Sinclair, 156 Fla. 341, 22 So.2d 762. Sections 924.14-16, Florida Statutes, F.S.A. Consequently, statutes and deci......
  • Baggott v. Otis
    • United States
    • Florida Supreme Court
    • May 20, 1913
  • Doty v. Mason
    • United States
    • U.S. District Court — Southern District of Florida
    • August 27, 1917
    ...become a part thereof, so that upon attack by motion they can be referred to in order to rescue the petition from attack. Cheney v. Trammell, 65 Fla. 459, 62 So. 916, and cases cited. This defect is, however, easily and the petition would not be dismissed without opportunity afforded the pe......
  • Request a trial to view additional results

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