Montgomery v. Travelers Indem. Co.

• Decision Date: 13 December 1966
• Docket Number: H--448,Nos. H--301,s. H--301
• Citation: 192 So.2d 779
• Parties: W. C. MONTGOMERY, Appellant, v. The TRAVELERS INDEMNITY COMPANY, a corporation, Russell J. Buschkotter, trading as Top Trade Motors, Joe R. Buschkotter, Jelks T. Strickland, Henry Taylor, d/b/a Taylor's Used Cars, and Arthur Draughon and Nora B. Draughon, his wife, Appellees(two cases).
• Court: Florida District Court of Appeals

Page 779

192 So.2d 779

W. C. MONTGOMERY, Appellant, v. The TRAVELERS INDEMNITY COMPANY, a corporation, Russell J. Buschkotter, trading as Top Trade Motors, Joe R. Buschkotter, Jelks T. Strickland, Henry Taylor, d/b/a Taylor's Used Cars, and Arthur Draughon and Nora B. Draughon, his wife, Appellees(two cases).

Nos. H--301, H--448.

District Court of Appeal of Florida, First District.

Dec. 13, 1966.

Rehearing Denied Jan. 5, 1967.

Ray L. Wilson, Jacksonville, for appellant.

Harry T. Gray, James C. Rinaman, Jr., Jacksonville, and Mattox S. Hair, of Marks, Gray, Yates, Conroy & Gibbs, Blalock & Holbrook, Jacksonville, Weinstein, Weinberg & Weinstein, Miami Beach, and Smith, Axtell, Howell & Rumph, Jacksonville, for appellees.

WIGGINTON, Acting Chief Judge.

Appellant Montgomery has filed in this court two separate appeals arising out of the same cause of action, one of which seeks review of two interlocutory orders entered prior to final decree, and the second for review of the final decree itself. We have merged both appeals for the purpose of oral argument, and will consider the case in its entirety rather than in a piecemeal fashion.

Montgomery brought suit in the Circuit Court of Duval County against appellee, Russell J. Buschkotter, and Travelers Indemnity Company of Hartford, Connecticut. Travelers was joined as a defendant by virtue of a surety bond it had theretofore furnished as surety for Russell J. Buschkotter, as principal, and the Motor Vehicle Commissioner of Florida, as obligee, in the penal sum of $3,000.00. This bond is required by the statutes of this state as a condition to Buschkotter securing a license to engage in the business of buying, selling, and dealing in used motor vehicles. ¹ The action terminated in a final judgment in favor of Montgomery in the sum of $3,000.00, together with costs of $68.00.

During the pendency of the foregoing action, and prior to rendition of the foregoing judgment, Travelers filed this action in the Circuit Court of Duval County in which its principal Buschkotter, his creditor Montgomery, together with other creditors of Buschkotter were joined as defendants. After rendition of the judgment in favor of Montgomery in his then pending action against Travelers and Buschkotter, Travelers filed in this cause its amended complaint alleging that it had been served with summons and complaints filed by those parties named as defendants in the suit, in each of which complaints claim and demand was made upon Travelers for the full sum of $3,000.00, the total amount of its obligation under the surety bond it had furnished Buschkotter. The amended complaint further alleged that the defendant Montgomery had obtained judgment against Travelers and Buschkotter for the full amount of Travelers' liability under its surety bond, and had made demand on Travelers for payment and satisfaction of his judgment. Travelers alleged that it was in doubt as to its rights, duties, and obligations under the surety bond it had furnished because of the multiplicity of claims made against it, each for the maximum amount of its liability. With the filing of its complaint Travelers deposited in the registry of the court the sum of $3,000.00 for which it stood obligated by virtue of its surety bond, and in its prayer for relief prayed for a judicial declaration of its rights, interests and legal relationship to the parties defendant, and for a decree declaring and determining when, in what amounts, and to whom it was liable under its surety bond. The complaint further prayed for the issuance of a temporary injunction restraining Montgomery from levying or executing against Travelers on his judgment, and restraining the other defendants from proceeding further in the suits filed by them and then pending against Travelers in the Circuit Court of Duval County.

At a hearing held after due notice to the parties, the chancellor entered an order granting Travelers' motion for a temporary injunction restraining appellant Montgomery from proceeding to levy and execute upon the judgment obtained by him against Travelers, or from any wise pursuing collection of the judgment insofar as it affected Travelers as a judgment debtor. At a subsequent hearing upon notice to the parties the chancellor denied Montgomery's motion to dismiss the complaint, to quash the temporary injunction and to require Travelers to post a bond conditioned upon its payment...