Ruth v. U.S. Fidelity & Guaranty Co.

• Decision Date: 23 November 1955
• Citation: 83 So.2d 769,55 A.L.R.2d 541
• Parties: W. R. RUTH, Gale Packing Co., R. E. Stokes, O. H. Morris Crab Company, W. H. Parker, and B. N. Stockes, Appellants, v. UNITED STATES FIDELITY AND GUARANTY CO., a surety company authorized to dobusiness in Florida, Appellee.
• Court: Florida Supreme Court

Page 769

83 So.2d 769

55 A.L.R.2d 541

W. R. RUTH, Gale Packing Co., R. E. Stokes, O. H. Morris Crab Company, W. H. Parker, and B. N. Stockes, Appellants, v. UNITED STATES FIDELITY AND GUARANTY CO., a surety company authorized to dobusiness in Florida, Appellee.

Supreme Court of Florida, Special Division A.

Nov. 23, 1955.

Walton & Walton, J. V. Walton and Kate L. Walton, Palatka, for appellants.

Z. D. Giles, Leesburg, for appellee.

STANLY, Associate Justice.

The questions involved in this appeal will be clarified by stating the historical background which brought on the instant suit.

On May 1, 1952, Gid Willson and Lake County Fish and Game Association obtained an order from the Circuit Court of Lake County providing for the issuance of a temporary injunction enjoining and restraining the same persons who appear here as appellants in the instant suit, and also one T. S. Biggs who has since died, from carrying on a commercial fish seining operation in the waters of Lakes Harris and Eustis in Lake County, Florida, to become effective upon their filing surety bond in the sum of $1,500 conditioned to pay the defendants such costs and damages as may be incurred or suffered by them by reason of the wrongful issuance of said injunction. Bond as required was furnished by Gid Willson and Lake County Fish and Game Association, as principals, and United States Fidelity and Guaranty Company, as surety, and the injunction was in force and effect until this Court directed that the injunction be dissolved and that the suit be dismissed. Biggs v. Willson, Fla., 60 So.2d 399.

The aforesaid injunction bond expressly provided that it was the joint and several obligation of the aforenamed principals and surety. Following dissolution of the injunction the obligees under said bond, consisting of the same persons who are the appellants in the instant suit, together with T. S. Biggs who was living at the time, filed suit in the Circuit Court of Lake County, Florida, on November 20, 1953, against the surety, United States Fidelity and Guaranty Company, for damages alleged to have been sustained by reason of the alleged wrongful issuance of said injunction. The defendant surety filed a motion to dismiss that complaint upon the theory that the principals on the bond, namely; Gid Willson and Lake County Fish and Game Association were necessary and indispensable parties to the suit. After hearing on said motion the trial judge entered an order on January 21, 1954, wherein he sustained said motion and ordered that said principals on the bond be made parties to the suit, and allowed the plaintiffs therein ten days to amend their complaint in compliance with said order, and further ordered that in the event the plaintiffs failed to so amend their complaint within the ten day period allowed then the cause would stand dismissed. However within a few days prior to the expiration of the ten days allowed plaintiffs to amend as aforementioned the trial judge by his letter dated January 27, 1954 and bearing the caption of said case, wrote the attorneys for the respective parties to the suit, stating:

'Both you * * * stated before me at a hearing in the above styled cause that you had been unable to find any Florida autorities on the question of proper parties in an action on an injunction bond.

'Pursuing a faint memory of such a case, I uncovered the case of Fidelity and Deposit Company of Maryland v. Aultman, reported in (58 Fla. 228) 50 So. at page 991. Superficially, it appeared that my ruling in this cause was erroneous, and I would like to have your reaction if you have studied the above cited case.'

Notwithstanding such commendable demonstration of the trial judge's industry and eagerness to assure correct disposition of the matter it appears that this litigation thereafter embarked upon a series of misguided courses.

Insofar as any of the records available to us reveal the aforementioned order and letter of January 21st and 27th respectively brought to an end the proceedings had in the trial court in that case, which was assigned docket No. 5756 in the trial court, and will be hereinafter identified by reference to such docket number. No other pleadings, orders, or papers of any kind, were subsequently filed in that suit.

The next move observed was that the plaintiffs in case No. 5756 filed in this court their petition for writ of certiorari in which they, for the first time, asserted:

'Plaintiffs elected not to amend (Clerk's certificate following Transcript of Record) and on January 31, 1954, the said Order of January 21, became final'.

By such proceeding petitioners apparently hoped to have the order of January 21st quashed, but upon authority of Wolf v. Industrial Supply Corp., Fla., 62 So.2d 30, it was doomed from inception, and the requested writ of certiorari was properly denied without opinion. Biggs v. United States Fidelity & Guaranty Co., Fla., 73 So.2d 714. Proceedings to effectuate an appropriate appeal to test the correctness of the ruling complained of were available to the complaining parties. Compare Schwenck v. Jacobs, 160 Fla. 33, 33 So.2d 592, with Sumerall v. Florida Tar & Creosote Corp., Fla., 55 So.2d 713.

Following denial of certiorari the complaining parties embarked upon a renewed effort to litigate their claim involved in former case 5756, in the form of the instant case now before us. In it the...