Palmer v. Palmer

• Decision Date: 18 April 1899
• Parties: PALMER v. PALMER.
• Court: Florida Supreme Court

26 So. 640

41 Fla. 184

PALMER v. PALMER.

Florida Supreme Court

April 18, 1899

Error to circuit court, Duval county; Rhydon M. Call, Judge.

Action by Paul Palmer against Catherine L. Palmer. Judgment for plaintiff. Defendant brings error. Motion to vacate supersedeas granted.

Syllabus by the Court

SYLLABUS

Under the provisions of section 1272, Rev. St., providing that the circuit judges shall determine the amount and conditions of supersedeas bonds when the judgment to be superseded is in whole or in part other than a money judgment, the trial judges, in determining the amount and conditions of such bonds, should take into consideration the various rights adjudicated by the judgment to be superseded and accruing by reason thereof to the party in whose favor it is, and so shape both the amount and conditions of such bonds as that they will, according to the circumstances of each particular case, fully secure and protect the obligee in all the varied rights accruing to him under his suspended judgment.

COUNSEL

J. W. Archibald and D. H. Doig, for plaintiff in error.

H. B Philips, for defendant in error.

OPINION

PER CURIAM.

Paul Palmer sued Catherine L. Palmer in ejectment in the circuit court of Duval county, and recovered judgment adjudging him to be the owner in fee of the lots of land sued for, and that he was entitled to the possession thereof, and awarding to him the sum of $344 for his damages for mesne profits besides the costs of suit. From this judgment Catherine L Palmer took a writ of error to this court. Upon the suing out of the writ of error on the 4th day of January, 1899, the circuit judge made an order that the plaintiff in error should execute to the defendant in error a bond in the sum of 'seven hundred dollars, with the usual conditions,' to be approved by the clerk. Although the record does not so explicitly show, yet we infer that the bond so required to be given, as it shows upon its face, was designed to be a supersedeas bond. At all events, it seems to be so treated and regarded by all parties. Upon this order the plaintiff in error executed to the defendant in error and filed a bond in the sum of $700, with two sureties, conditioned as follows: 'Now, therefore, whereas the said Catherine L. Palmer, as defendant in the above-entitled suit, has applied for, and expects to have issued upon the execution and approval of this bond, a writ of error and supersedeas in her favor as to the certain judgment rendered against her, and in favor of said Paul Palmer as plaintiff in said suit on the 19th day of December, A. D. 1898. This bond is conditioned to pay the amount of the said judgment, with interest and costs and damages, if any, given by the appellate court, in case said judgment be affirmed by the appellate court.'

The defendant in error now moves to vacate the supersedeas effected by said bond, upon the grounds, among others, that it is not sufficient in amount, is not properly conditioned and is not such a bond as is required by law. Section 1272 of the Revised Statutes provides that when a party against whom a judgment has been given in the court below desires a writ of error for the review of such judgment to have the effect of a supersedeas thereof, he shall...