Dunes Enterprises, Inc. v. Papandrea

• Decision Date: 09 November 1965
• Docket Number: No. 65-569,65-569
• Citation: 179 So.2d 580
• Parties: DUNES ENTERPRISES, INC., etc., Appellants, v. Anthony PAPANDREA and Morse Auto Rentals, Appellees.
• Court: Florida District Court of Appeals

Page 580

179 So.2d 580

DUNES ENTERPRISES, INC., etc., Appellants, v. Anthony PAPANDREA and Morse Auto Rentals, Appellees.

No. 65-569.

District Court of Appeal of Florida, Third District.

Nov. 9, 1965.

Rehearing Denied Nov. 24, 1965.

Paul P. Meltzer and Murray Goldman, Miami, for appellants.

Nichols, Gaither, Beckham, Colson & Spence and Robert Orseck, Miami, for Papandrea.

Weinstein & Silverman and Fred Patrox, Miami, for Morse Auto Rentals.

Before HENDRY, C. J., and TILLMAN PEARSON and CARROLL, JJ.

CARROLL, Judge.

This is an interlocutory appeal from an order denying a motion to stay execution of judgment against one (non-appealing) defendant, when another such defendant had appealed and superseded the judgment .

The question presented by the appeal is whether in a personal injury action arising out of an automobile accident in which judgment is rendered in favor of a plaintiff against the driver of the car, his employer and the owner-lessor, where an appeal is taken with supersedeas by the defendant owner-lessor, such supersedeas stays execution of the judgment against a defendant who did not appeal, or stays execution only as to the one judgment defendant who appealed. A further question involved is whether the form of the order was such as to make the supersedeas operate to stay the judgment as to all defendants.

The rule established in this state that supersedeas of a judgment operates to stay the execution thereof would appear sufficiently broad to preclude enforcement of the pending judgment during appeal. Pennsylvania Threshermen & Farmers' Mutual Casualty Ins. Co. v. Barrett, Fla.App.1965, 174 So.2d 417, 418; Lockleer v. City of West Palm Beach, Fla.1951, 50 So.2d 348, 349; Carr v. Marion Mortgage Co., 99 Fla. 807, 126 So. 776, 777; McKinnon-Young Co. v. Stockton, 53 Fla. 734, 44 So. 237, 246; Bacon v. Green, 36 Fla. 313, 18 So. 866, 869. In McKinnon-Young Co. v. Stockton, the court said: 'The real effect of an appeal with supersedeas is to suspend the power of the court below to make any order tending towards an execution or enforcement of the order or decree appealed from * * *.'

In addition to that general proposition there are two reasons which call for reversal of the order appealed from. One is that stay of execution against the lessee Dunes, at the time applied for, was necessary for preservation of the rights of Morse who appealed and superseded the judgment. This is so because there was a judgment over, in favor of Dunes,...