Cummings v. City of Miami Beach, 41653

• Decision Date: 31 May 1972
• Docket Number: No. 41653,41653
• Citation: 263 So.2d 571
• Parties: A. J. CUMMINGS and Sadie Belk Cummings, his wife, et al., Petitioners, v. CITY OF MIAMI BEACH, a municipal corporation, Respondent.
• Court: Florida Supreme Court

Page 571

263 So.2d 571

A. J. CUMMINGS and Sadie Belk Cummings, his wife, et al., Petitioners, v. CITY OF MIAMI BEACH, a municipal corporation, Respondent.

No. 41653.

Supreme Court of Florida.

May 31, 1972.

William G. Earle, of Kelly, Black, Black & Kenny, Miami, for petitioners.

Joseph A. Wanick, City Atty., for respondent.

ADKINS, Justice.

By petition for certiorari, we have for review a decision of the District Court of appeal, Third District (City of Miami Beach v. Cummings, 251 So.2d 715), which allegedly conflicts with a decision of the District Court of Appeal, Fourth District (Coggan v. Coggan, 183 So.2d 839) on the same point of law. Fla.Const., art. V, § 4, F.S.A.

The facts are stated by the District Court of Appeal, as follows:

'Essentially the point raised is one of procedure. It arose in the following manner: (1) A judgment for attorney's fees supplemental to a proceeding in eminent domain was entered in favor of the appellees against the City. (2) The City appealed judgment without supersedeas bond. (3) The judgment was affirmed. (4) Appellees demanded interest on the judgment from the date of the judgment to the proposed payment thereof. (5) Appellant tendered the amount of the judgment and the payment was accepted. (6) Appellees filed in the completed eminent domain proceeding a motion 'to determine liability of petitioner for interest on judgment for attorney's fees and costs.' (7) The 'motion to determine' was heard over the objection of the City that the procedure was improper. (8) The trial judge entered an additional judgment in the cause for the amount of interest that he determined was due on the original judgment for attorney's fees.' (Emphasis supplied) (City of Miami Beach v. Cummings, 251 So.2d 715, p. 716.)

The District Court of Appeal then held as follows:

'We hold that the trial judge was without authority to enter a second judgment in the cause upon appellees' motion 'to determine liability.' After the appeal of a judgment and its affirmance by an appellate court, the trial court is without authority to take any further action in the cause other than to carry out the mandate of the appellate court.' (p. 716)

The District Court of Appeal then pointed out that the proper method of enforcing a judgment against a City is by a petition for writ of mandamus.

Coggan v. Coggan, Supra, involved an award of attorneys' fees in divorce proceeding. After the order allowing attorneys' fees was entered, a subsequent judgment was entered against defendant for interest on the attorneys' fees. Fla.Stat. § 55.03, F.S.A., provides that all judgments bear interest at the rate of six per cent per annum. In discussing this statute, the District Court of Appeal in Coggan v. Coggan, Supra, said:

'Since the chancellor had already entered a decree awarding attorneys' fees it automatically carried interest at six per cent per annum and his subsequent order to that effect was mere surplusage. . . . in substance the order is nothing more than a declaration that statutory interest on the original award had accumulated to that date in the sum mentioned. As it is substance and not form that...