Lindsey v. Dykes

• Decision Date: 31 July 1937
• Citation: 175 So. 792,129 Fla. 65
• Court: Florida Supreme Court
• Parties: LINDSEY v. DYKES, Clerk of Court.

175 So. 792

129 Fla. 65

LINDSEY v. DYKES, Clerk of Court.

Florida Supreme Court

July 31, 1937

Proceeding by J. T. Lindsey against George J. Dykes, as Clerk of the Circuit Court in and for Lake County, Florida. From an order dissolving a temporary restraining order, the plaintiff appeals.

Reversed and remanded in accordance with opinion. Appeal from Circuit Court, Lake County; J. C. B. Koonce, judge.

COUNSEL

Wells & Hall, of Leesburg, for appellant.

J. W Hunter, of Tavares, for appellee.

OPINION

BUFORD Justice.

In this case appeal is from an order dissolving a temporary restraining order. The temporary restraining order was granted pursuant to the allegation of the bill of complaint alleging that the complainant had been convicted in the circuit court in and for Lake county, Fla., at the spring term thereof, for the offense denounced by section 5563. R.G.S., as amended, section 7749, C.G.L., and thereupon been sentenced as follows:

'The State of Florida

vs.

J. T Lindsey.

'Sentence

'It is, therefore, now the sentence of the law and the judgment of the Court, that you, J. T. Lindsey, pay a fine of Two Hundred ($200.00) Dollars and all costs of prosecution, and, in default of the payment of such fine and costs that you be punished by imprisonment in the county jail of Lake County at hard labor for the period of twelve months.'

That complainant had paid the fine imposed of $200, and that the clerk had demanded of the complainant the sum of $247.25 as costs 'and in default of such payment has threatened to enter up an execution as provided by law against the plaintiff herein and his said bondsmen in the amount so demanded.'

The temporary restraining order provided in part as follows:

'It is considered, ordered, adjudged and decreed that pending the further order of this Court that the defendant Geo. J. Dykes, as Clerk of the Circuit Court in and for Lake County, Florida, be and he is hereby enjoined and restrained from issuing an execution against the plaintiff herein, and his bondsmen, to-wit: Chas. T. Chandler and C. A. Childs, based upon the bond for costs described in and attached to the bill of complaint in this cause or based upon the conviction and judgment described in the bill of complaint herein.'

Section 6161, R.G.S., section 8475, C.G.L., provides as follows:

'Judgment for costs on conviction.--In all cases of conviction for crime the costs of prosecution shall be included and entered up in the judgment rendered against the convicted person.'

It is well settled that independently of special statutory authorization, the court has no power to award costs against a defendant on conviction. 15 C.J. 319; Moore v. People, 37 Ill.App. 641; State v. Stone, 40 Mont. 88, 105 P. 89; Faust v. State, 45 Wis. 273; Taylor v. State, 35 Wis. 298.

In the case of Omohundro et al. v. Wilkins et al., 94 Fla. 649, 114 So. 502, we said:

'That part of the final decree in Miller et al. v. Stokes et al assessing the costs is as follows: It is further ordered, adjudged and decreed that the clerk of this court tax and assess the costs in this suit expended, and that the said complainants, J. T. Miller, Addie Malloy, Angus Patterson Malloy, Benjamin Swann Malloy and John West Malloy, do have and recover of and from the defendants Edgar Eugene Stokes, Allie Jeannette Wilkins (Nee Stokes), and V. D. S....