Tampa Street-railway & Power Co. v. Tampa Suburban R. Co.
| Decision Date | 22 November 1892 |
| Citation | 30 Fla. 400,11 So. 908 |
| Parties | TAMPA STREET--RAILWAY & POWER CO. v. TAMPA SUBURBAN R. CO. |
| Court | Florida Supreme Court |
Appeal from circuit court, Hillsborough county; G. B. SPARKMAN Judge.
Action by the Tampa Street-Railway & Power Company against the Tampa Suburban Railroad Company to enjoin defendant company from building a street railway in the city of Tampa. A restraining order was granted, which was after wards dissolved. From the dissolving order there was an appeal, and an order that the appeal should operate as a supersedeas. Defendant moves to vacate thesupersedeas. Motion granted.
Syllabus by the Court
1. An appeal from an interlocutory order, decision, judgment, or decree of a circuit court, sitting as a court of equity, will not operate as a supersedeas unless the judge of the circuit court, or a justice of the supreme court, on inspection of the record, shall think fit to order and direct a stay of such proceedings.
2. No supersedeas, whether granted by the circuit judge or a justice of the supreme court, from an interlocutory order or decree, in whole or in part, other than for a money judgment shall operate to suspend the order or decree appealed from until the giving of a bond, with two good and sufficient obligors, in such amount and conditioned as may be determined by the circuit judge.
3. A supersedeas will not be vacated where it appears that the damages which may result to the appellee by reason of the granting thereof are such as can be compensated in money unless the appeal is frivolous; that is, unless the points of error suggested by an inspection of the record are so plain as to require no argument to show their untenableness. The rule declared in Williams v. Hilton, 6 South. Rep. 452, 25 Fla. 608, is correct, for the class of cases of its kind.
4. The action of a circuit judge in approving the sureties of a supersedeas bond, as to the condition of the sureties then existing, will be conclusive, unless it is made to appear that the condition of the sureties at the time of the approval was misrepresented to the judge, and that his approval was obtained in a manner that will amount to a fraud.
5. The approval of the sureties on a supersedeas bond, as well as the granting of the supersedeas itself, is an ex parte proceeding, but the personal presence of the appellee, by himself or attorney, will not prevent him from showing to the appellate court that the approval was fraudulently obtained.
COUNSEL P. O. Knight and Wall & Wall, for the motion.
S. M Sparkman and Macfarlane & Pettingill, opposed.
The first ground of the motion to vacate the supersedeas, 'because it adjudicates matters not complained of in the bill, and which do not appear in the pleadings,' demands no consideration. Counsel do not rely upon it in discussing the motion here; and if by it is meant that the court deviated from the issues presented by the pleadings in adjudicating the contempt matters, it is clear that the appellant company has not appealed from this portion of the order, and has not obtained any supersedeas in reference to it.
The second and third grounds of the motion may be considered together, and they present the question whether or not the cause is such as to entitle the appellant to a supersedeas. The appeal is from an order dissolving a temporary injunction or restraining order previously granted, and not from a final decree. Looking to the order appealed from, it is certain that it is not for the payment of money, as the restraining order was against the further construction of a line of railroad in the streets of the city of Tampa, and the dissolution of this order is the matter brought up by the appeal. We then have a supersedeas from an interlocutory order, not for the payment of money, but for the dissolution of a temporary injunction against doing certain things. Of course, an appeal can be taken from an interlocutory order made in a chancery cause. Rev. St. § 1457. In subdivision 2, § 1458, Rev. St., it is provided that The conditions prescribed in cases of appeals from final decrees, in addition to the allowance of the supersedeas by the judge after the expiration of the time allowed to perfect the same as of course, are the giving of bond and security as provided in cases of writs of error. It is provided in the writ of error statute, in reference to supersedeas bonds, that if the judgment appealed from is, in whole or in part, other than a money judgment, the amount and condition of the bond shall be determined by the court below. Rev. St. § 1272. The order appealed from in the present case is not for the payment of money, and hence, under the statute, can be said to be a decree other than for the payment of money. It is also clear, we think, that the damages which may result to the appellee by reason of the supersedeas are such as can be compensated in money. The circuit judge granted the supersedeas, fixed the amount of the bond, and approved the securities, in the case before us. For appeallee, it is contended that the appeal is frivolous, and the supersedeas should not have been granted. For appellant, it is insisted that the appeal is not frivolous, and that in case of an original application for supersedeas, if the court or judge can see that the damages likely to result therefrom can be compensated in money, and the appeal is not frivolous, the practice is always to grant it; and for a much stronger reason will the appellate court refuse to vacate a supersedeas granted by a circuit judge, before whom the entire matter was brought and fully argued. The case of Saxon v. Gamble, 23 Fla. 408, 2 South. Rep. 664, is cited by counsel as authority against the motion. In this case the then chief justice of this court granted a supersedeas on an appeal from an order setting aside a final decree, and it was contended in behalf of a motion to vacate the supersedeas that it was not such an order as justified the writ. In the opinion disposing of this motion, it is said: 'It is not necessary or proper for a justice, on application for supersedeas, to consider the merits of the appeal; and therefore we do not consider whether the judge could legally make such an order.' In Williams v. Hilton, 25 Fla. 608, 6 South. Rep. 452, it is said that the justice granting thesupersedeas 'is not to satisfy his mind on litigated questions, but only to see that there is an appeal; that it is not frivolous; and that the state of the case, as to its future course, is such as to render a stay of proceedings proper.' This is declared to be the meaning of the court when it used the language quoted in the Saxon-Gamble Case. The rule stated in the case of Williams v. Hilton must then be taken to express the view of the court on this subject in the character of cases covered by it. It is further to be noted that in this case an appeal has been taken from an order dissolving an injunction, and the damage to result from the supersedeas was of such a character as to be compensated for in money. The case of Jacoby v. Shomaker, 26 Fla. 502, 7 South. Rep. 855, was an application for asupersedeas in the appellate court, in a case where the damage likely to result from such a stay could not be compensated in money, and it was refused. Here it was distinctly stated that, 'where the damage which may result from a supersedeas to a decree is of such character that it can be compensated in money, a supersedeas will be granted, if the appeal does not, upon an inspection of the record, appear to be frivolous; or, in other words, if the points of error suggested by the record are not such as require no argument to show their untenableness.' The rule stated in Williams v. Hilton is said in this case to be correct for the class of cases of its kind.
The Revised Statutes authorizing a judge of the circuit court, or a justice of this court, to grant a supersedeas from interlocutory orders or decrees, is the same, in effect, as the act of 1853, under which the foregoing decisions of this court were made. The rule therein announced as to frivolous appeals is the one to be applied to the case before us; and if, upon an inspection of the record, the points of error therein suggested are so plain as to require no investigation, or, as expressed in Jacoby v. Shomaker, are such as to require no argument to show their untenableness the supersedeas will be vacated. A brief reference to the case will reveal the nature of the points of error to be passed upon by this court: The Tampa Street-Railway & Power Company, appellant, in its bill for an injunction represents itself as a corporation existing under the laws of the state of Florida, and claims a right to occupy the streets of the city of Tampa with street-railway tracks, by virtue of a charter granted by the legislature of the state to the Tampa Street-Railway Company, and the acquisition of the rights and franchises of this company on the part of the appellant, by purchase, some time in June, A. D. 1892. The grounds upon which appellant seeks to enjoin the occupancy of the streets of said city, or some of them, by the appellee, with parallel and competing lines of street railway, are: First. That appellee was organized under the general railroad incorporation act of the state of Florida, for the purpose of...
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