Mcmichael v. Eckman

• Decision Date: 11 February 1890
• Citation: 26 Fla. 43,7 So. 365
• Court: Florida Supreme Court
• Parties: McMICHAEL v. ECKMAN et al.

7 So. 365

26 Fla. 43

McMICHAEL v. ECKMAN et al.

Florida Supreme Court

February 11, 1890

Appeal from circuit court, Pasco county; G. A. HANSON, Judge.

Syllabus by the Court

SYLLABUS

1. An appeal from an order dissolving an injunction does not of itself reinstate the injunction; but an appeal, and an order by the circuit judge or a justice of the supreme court, under the statute that the appeal shall operate as a supersedeas to the order appealed from, and a compliance with the terms of the supersedeas order as to giving bond, do restore the injunction.

2. If a person is entitled to an exemption out of personal property which has been levied upon by a sheriff, it is his right to have the exemption set apart in kind; and, if this right can at any time be denied him to the extent of having the entire property levied on sold, and of remitting him to taking the money value of the exemption, if it shall be found at the end of litigation that he is entitled to the exemption, it will at least not be done where it is not shown that the delay incident to setting aside the property claimed as exempt will be fatal to the interests of the parties concerned.

3. Where the sale of goods, wares, and merchandise has been enjoined until $1,000 worth of personal property shall be set aside for complainant as the exemption of personal property allowed the head of a family by the constitution, the property claimed as exempt to be scheduled immediately in the manner directed by law, and remain in the possession of the sheriff, and subsequently the injunction is dissolved on motion of defendants, and, the complainant having appealed from the dissolving order, an order is made that the appeal shall operate as a supersedeas on the filing and approval of a specified bond, the appellate court will not, on petition of the appellees, acting under the assumption that the required bond has been given, vacate or modify the supersedeas so as to permit a sale of the entire property, on the ground that it is perishable, and that the sheriff misunderstanding the scope and meaning of the supersedeas order, refuses to sell the property levied on, or any part thereof; particularly where it is not shown that the property is perishable to the extent that would render the delay fatal to the interests of the parties concerned.

4. Where a supersedeas order mand in a chancery appeal to the supreme court requires that the bond shall be conditioned for the payment of damages and costs, and a bond conditioned for the payment of costs only is take and approved by the clerk of the circuit court as a compliance with the order, the bond will be held insufficient, and the approval of it vacated, by the supreme court.

5. A supersedeas bond which does not identify the decree appealed from will not be accepted or approved by the supreme court.

COUNSEL

R. W. Williams, for appellant.

Sparkman & Sparkman and Thomas Palmer, for appellees.

OPINION

RANEY C.J.

An injunction was granted by J. G. Wallace, court commissioner of Pasco county, restraining the appellees including the sheriff, from selling the personal property of appellant until $1,000 worth of the same should be set aside to appellant, as the head of a family residing in this state as exempt from forced sale under the constitution and laws.

The following provisions appear in the injunctional order: 'This order shall not be construed so as to delay the sale of other goods, wares, and merchandise advertised to be sold on the 6th day of January, A. D. 1890; but, on the contrary, that the said personal property claimed to be exempt by the complainant, John T. McMichael, shall be scheduled by him immediately upon issue of this order to the sheriff. The appraisal thereof shall be had, as the law directs, without delay; and the sale of the goods, wares, and merchandise, with the exception of said exemption, proceed as advertised. It is further ordered that the personal property so selected and appraised as the exemption of the said McMichael remain in the possession of the sheriff until the further order of the circuit court.'

Subsequently the cause came on to be heard before the circuit judge on motion of the defendants, appellees here, and he made a decree setting aside the order and dismissing the bill, and from this decree McMichael appealed, and applied for a supersedeas; and one of the justices of this court made an order, in the form usual in our practice, that the appeal should operate as a supersedeas to the decree of the circuit judge upon the appellant giving bond with sureties, and of the penalty and condition, and to be approved, as in the order specified.

Appellees have filed a petition before this court which sets forth, in substance, that the goods, wares, and merchandise mentioned in the record, and out of which the appellant claims $1,000 worth as exempt, have already been held, under the...