State Road Dept. of Florida v. Zetrouer

• Citation: 142 So. 217,105 Fla. 650
• Parties: STATE ROAD DEPARTMENT OF FLORIDA v. ZETROUER.
• Decision Date: 08 June 1932
• Court: United States State Supreme Court of Florida

142 So. 217

105 Fla. 650

STATE ROAD DEPARTMENT OF FLORIDA v. ZETROUER.

Florida Supreme Court, Division B.

June 8, 1932

Error to Circuit Court, Alachua County; A. V. Long, Judge.

Condemnation proceeding by the State Road Department of the State of Florida against A. B. Zetrouer. To review a judgment awarding defendant compensation, plaintiff brings error.

Affirmed.

COUNSEL B. A. Meginniss, of Tallahassee, and Hampton &amp Jordan, of Gainesville, for plaintiff in error.

Fielding & Duncan, of Gainesville, for defendant in error.

OPINION

TERRELL J.

In a statutory proceeding authorized by section 1503 et seq., Rev Gen. St. 1920 (section 2281, et seq., Comp. Gen. Laws 1927) the state road department secured a judgment in condemnation against A. B. Zetrouer, in which Zetrouer was awarded compensation in the sum of $4,725, plus $200 as attorney's fees. From that judgment this writ of error was prosecuted.

Immediately the record was lodged in this court defendant in error moved to dismiss the writ of error for the following reasons: (1) Plaintiff in error cannot have reviewed a judgment in its favor; (2) if plaintiff in error is entitled to have its judgment reviewed, it must first pay into the registry of the court the amount of the award or verdict of the jury; and (3), if plaintiff in error, being an arm of the state, is entitled to have its judgment reviewed, it is required to give a bond to secure the amount of the judgment in addition to the usual supersedeas bond.

The statutes, sections 1513 and 3286, Revised General Statutes of 1920 (sections 2291 and 5094, Complied General Laws of 1927), both applicable to the cause, provide that, in proceedings of this kind, 'any person aggrieved by the final judgment may have a writ of error as in common law cases.' While the only challenge to the judgment is grounded on its alleged excessiveness, such a challenge would seem ample to meet the test of the statutes. The mere fact that a litigant secures a judgment in his favor does not necessarily mean that there may not be some aspect of said judgment at which he would be aggrieved and which would present grounds for review by an appellate court.

This court is committed to the general rule that appeal does not lie to a judgment in one's favor, but this rule is not applicable where prejudicial error was committed in connection with the judgment, or where said judgment was void or otherwise in such condition that it is unjust or injurious to the party securing it. Lovett v. Lovett, 93 Fla. 611, 112 So. 768; Zigler v. Erler Corporation (Fla.) 136 So. 718.

It is next contended that the writ of error should be dismissed because the plaintiff in error failed to deposit in the registry of the court the amount of compensation found to be due the defendant in error for the lands condemned.

Section 1513, Rev. Gen. St. 1920 (section 2291, Comp. Gen. Laws 1927) provides that 'no writ of error shall be sued out after thirty days from the rendition of the judgment, and such writ of error shall in no case operate as a supersedeas where the county has paid the amount of the compensation into the court as aforesaid, so as to prevent the county's appropriation of the property pending the proceedings in error.' See, also, section 3286, Rev. Gen. St. 1920 (section 5094, Comp. Gen. Laws 1927), being the general law on the subject of eminent domain, and section 2911, Rev. Gen. St. 1920 (section 4621, Comp. Gen. Laws 1927), being the general law regulating writs of error.

Section 1512, Rev. Gen. St. 1920 (section 2290, Compiled General Laws of 1927), requires the county (the state road department in this case, as required by section 1645, Comp. Gen. Laws 1927), within ten days after the rendition of the judgment, to pay into the court, for the use of the defendant, the compensation ascertained by the jury, or else the proceedings shall be null and void, unless, for good cause, further time, not exceeding thirty days, be allowed by the court. Upon such payment, and upon the recording of the judgment, with the clerk's certificate that the compensation has been paid into the court, in the book of deeds in said clerk's office, the county shall have full and lawful authority to enter upon and appropriate the property for the uses aforesaid.

In this case thirty days' additional time was allowed for paying the amount of the verdict into the court, but before the expiration of that time writ of error was taken to the judgment. If the county is required to deposit the amount of the compensation found for the defendant in the registry of the court pending appeal, then the right of the county to have a judgment such as that brought here reviewed is virtually cut off. We do not think the law so intended. The statute, (section 1513, Rev. Gen. St. 1920, section 2291, Comp. Gen. Laws, supra) enumerates but one case in which the writ of error shall not operate as a supersedeas, and that is when taken by the defendant when the county has paid the compensation into court. In all other cases it would seem to follow that writ of error would operate as a supersedeas, as provided in section 2911, Rev. Gen. St., section 4621, Comp. Gen. Laws, supra. In other words, to determine this question, sections 1513 and 2911, Rev. Gen. St., supra, should be construed together.

We have examined Florida Cent. & P. R. Co. v. Bear, 43 Fla 319, 31 So. 287, relied on by plaintiff in error, but we do not think that case rules the case at bar. It is true a similar statute was involved in that case to the one involved in the...