State ex rel. Fulton Bag & Cotton Mills v. Burnside

• Court: Florida Supreme Court
• Writing for the Court: Author: Chapman
• Citation: State ex rel. Fulton Bag & Cotton Mills v. Burnside, 15 So.2d 324, 153 Fla. 599 (Fla. 1943)
• Decision Date: 19 October 1943
• Parties: STATE ex rel. FULTON BAG & COTTON MILLS v. BURNSIDE, Clerk of Court.

15 So.2d 324

153 Fla. 599

STATE ex rel. FULTON BAG & COTTON MILLS v. BURNSIDE, Clerk of Court.

Florida Supreme Court

October 19, 1943

Rehearing Denied Nov. 9, 1943.

Appeal from Circuit Court, Pasco County; John U. Bird Judge.

Raymond C Smith, of Lakeland, and Thompson H. Getzen, of Dade City, for appellant.

J. D Geiger, of Dade City, for appellee.

CHAPMAN, Justice.

The Fulton Bag and Cotton Mills, a corporation, on April 9, 1936, obtained a judgment in the County Court of Pasco County, Florida against J. A. Carver, doing business as J. A. Carver and Company, for the sum of $452.21, and costs, when the same was duly recorded in the office of the Clerk of the Circuit Court of Pasco County, Florida. Execution issued thereon and a levy on designated personal property made by the Sheriff of Pasco County, when J. A. Carver and Company, as principal, and D D. Covington and F. J. DeLong, as sureties, filed their forthcoming bond under the provisions of Sections 55.34, 55.35, Fla.Stats. 1941, F.S.A.

The conditions of the forthcoming bond were, viz.:

'The Condition of this obligation is such that whereas C. E. Dowling, Sheriff of said County, by virtue of an examination in favor of Fulton Bag and Cotton Mills, a corporation, against J. A. Carver, doing business as J. A. Carver and Company, has levied upon the following property: Seven Hundred Fifty field crates and material for making One Thousand Five shipping crates, of the total value of One Thousand Forty Five Dollars and Seventy-five cents, and J. A. Carver, doing business as J. A. Carver and Company, wishes to replevy the same now, if the said J. A. doing business as J. A. Carver and Company, shall have the said property forthcoming at Dade City, Florida, on the 6th day of July, A. D. 1936, then this obligation to be void; else to remain in full force and virtue.'

On July 8, 1936, the sheriff of Pasco County, in the case at bar, certified to the Clerk of the County Court of said County the forthcoming bond, and made known to the Clerk that the principal and the sureties of the bond failed and otherwise omitted to produce the property levied upon; neither was the same forthcoming on July 6, 1936, according to the terms and conditions thereof; neither had the execution then in his hands issuing on said judgment been paid in whole or in part.

On the foregoing certification of the sheriff of said county, the Clerk of the County Court of Pasco County, Florida, on July 6, 1936, entered a judgment on the forthcoming bond in favor of Fulton Bag and Cotton Mills against the sureties, D. D. Covington and F. J. DeLong, for the sum of $452.91, with costs.

On March 11, 1938, several months after the date of entry of the judgment against the sureties, the principal and sureties by counsel moved the court to vacate and set aside the judgment and cancel the execution issuing thereon on grounds, viz.: (1) The bond was never approved as required by law; (2) the sheriff had never made a return on the bond; (3) the value of the property levied upon was never fixed or settled by the sheriff; (4) the return as made by the sheriff on the forthcoming bond relieved the sureties of all obligations thereunder; (5) the property described in the forthcoming bond was not advertised by the sheriff for sale under the execution; (6) the property levied upon and described in the bond was by the sureties redelivered to the sheriff and the conditions of the bond satisfied; (7) the judgment bearing the signature of A. J. Burnside, Clerk of the Circuit Court of Pasco County, Florida, and ex officio Judge of the County Court of Pasco County ipso facto makes the judgment a nullity. An affidavit was attached to the motion to vacate.

On April 16, 1938, an order was made and entered by the Honorable O. L. Dayton, County Judge of Pasco County, sustaining the motion to set aside and vacate the judgment against the sureties and likewise cancelled the execution previously issued on the said judgment. During the year 1942 Fulton Bag and Cotton Mills requested or demanded of Honorable A. J. Burnside, Clerk, that he issue a writ of execution on the judgment entered against the sureties and on his refusal so to do by petition applied to the Circuit Court of Pasco County for an alternative writ of mandamus, which, after amendment, issued and was duly served on the respondent Burnside.

The answer or return of the respondent to the amended alternative writ was to the effect: (1) The respondent clerk was without authority to enter the judgment dated July 8, 1936, against the sureties; (2) that the sureties were relieved of the obligation of the bond because they redelivered to the sheriff the property levied upon; (3) the sheriff failed to fix the value of the...