Thalheim v. Camp Phosphate Co.

• Decision Date: 19 October 1904
• Citation: 48 Fla. 190,37 So. 523
• Parties: THALHEIM et al. v. CAMP PHOSPHATE CO.
• Court: Florida Supreme Court

37 So. 523

48 Fla. 190

THALHEIM et al. v. CAMP PHOSPHATE CO.

Florida Supreme Court

October 19, 1904

In Banc. Error to Circuit Court, Marion County; William S Bullock, Judge.

Action by Carl Thalheim, surviving partner of the Franco-American Phosphate Company, and L. Paul Jumeau, administrator, against the Camp Phosphate Company. Judgment for defendant, and plaintiffs bring error. Rule nisi discharged.

Syllabus by the Court

SYLLABUS

1. Section 1272 of the Revised Statutes of 1892, being in derogation of the common law, must be strictly construed. Its effect is to change the common-law rule requiring or permitting a sale of property levied on under an execution prior to the perfecting of the supersedeas; but it does not have the effect of restoring personal property previously levied on to the possession of the defendant in execution, or of impairing the lien thereon created by the levy of the execution.

COUNSEL

T. L Clarke, for plaintiff in error.

W. H Ellis, Atty. Gen., for the State On the 27th day of September, 1904, L. Paul Jumeau, as administrator of the estate of Achille Laurent, deceased, one of the plaintiffs in error, filed a petition in this court for a rule nisi against Augustus T. Priest, as sheriff of Citrus county. In substance, the petition recited that the defendants in error William N. Camp and Clarence Camp, as partners under the firm name of Camp Phoshate Company, as plaintiffs, obtained a verdict in the circuit court of Marion county against Carl Thalheim as surviving partner of the firm of Franco-American Phosphate Company, one of the plaintiffs in error, as defendant in the court below, on the 7th day of May, 1904 for the sum of $14,211, upon which verdict judgment for said sum and costs was rendered on the 11th day of May, 1904; that on the 16th day of May, 1904, an execution was issued by the clerk of said court upon said judgment, and the same was placed in the hands of said Augustus T. Priest, as sheriff of Citrus county, who on the 17th day of May, 1904 levied the same upon, among other things, 2,000 tons of phosphate rock in said county in the possession and control of said petitioner; that on the 9th day of May, 1904, the defendants in said action filed their motion for a new trial, which was denied by said court on the 25th day of May, 1904; that said phosphate rock so levied upon was of the value of about $10,000, and that after said levy the petitioner, being under contract for the immediate delivery of 500 tons of said phosphate rock, obtained the release of 500 tons said rock by said sheriff from said levy by placing in lieu thereof in the hands of said sheriff a certified check for $2,000; that at the time of the delivery of said check the said sheriff promised to and agreed with the petitioner that, if petitioner gave the necessary bond and perfected a supersedeas to said final judgment on the writ of error sued out in said cause, then the said sheriff would release said 1,500 tons of phosphate, and return to the petitioner said certified check; that on the 27th day of May, 1904, the defendants in the court below sued out from this court to said circuit court a writ of error against said judgment, returnable to the 14th day of July, 1904, but which return day was extended to the 15th day of August, 1904; that on the 30th day of June, 1904, a supersedeas to said final judgment was obtained by the petitioner upon said writ of error, upon petitioner giving a bond to said plaintiffs in the sum of $15,500, conditioned as required by law, which said bond was duly approved and accepted by the clerk of said court within the time allowed by law for the petitioner to perfect said supersedeas; that, notwithstanding the facts above stated, said sheriff refuses to release the balance of said rock from said levy, or to restore the same or to return said certified check to the possession of the petitioner, but that said sheriff still retains said rock and said check in his possession, and is further proceeding thereby in relation to said judgment. Wherefore petitioner prayed for a rule nisi against said sheriff, to show cause why he should not be adjudged to be in contempt of this court for violating the supersedeas granted in said cause.

On the 5th day of October, 1904, this court made an order directing the issuance of said rule as prayed, making the same returnable on the 12th day of October, 1904.

On said return day the said sheriff filed in this court his answer to said rule, in which he admitted practically all the facts alleged in said petition, with the exception of the promise made to him to the petitioner as alleged in said petition; stating that the only promise made by him to the petitioner, when he accepted said certified check and released 500 tons of rock from said levy, which was done for the accommodation of the petitioner, was that said check would be accepted by him in lieu of the phosphate so released, and that said check would be re-delivered to the petitioner whenever the remainder of the property so levied upon under said execution should be released by said sheriff. Said return contains an amplification of the facts recited in the petition, as well as some additional facts, but we deem it unnecessary to set them forth at length. Stress is laid upon the fact that said sheriff made said levy and took and retained actual possession of all of said rock before the writ of error was sued out or the supersedeas was perfected in said cause. The respondent denied in said return that the petitioner was entitled to the release of said rock and the restoration of the same to the petitioner, or to the return of said check, but contended that it was the duty of respondent to retain the possession of both said rock and said check. The respondent disclaimed any intention to commit any contempt or to violate any order of this court.

The respective counsel for the parties argued the matter orally before this court on the 13th day of October, 1904, and the matter is now before us for decision.

OPINION

SHACKLEFORD, J. (after stating the facts).

The sole question presented to us for decision is as to what effect the perfecting of the supersedeas had upon the right of possession to the phosphate rock so levied upon by said sheriff. Was the petitioner entitled to the return of said rock and said check? If so, then the respondent is technically, at least, guilty of contempt. It can hardly be contended that his conduct was intentionally and willfully contumacious. If guilty of disobedience at all, his disobedience is qualified by circumstances which should fairly exempt him from serious blame. Strickland v....