Thomas v. Martin
| Decision Date | 08 July 1930 |
| Citation | 129 So. 602,100 Fla. 146 |
| Parties | THOMAS et al. v. MARTIN, Governor for Use and Benefit of THOMAS. |
| Court | Florida Supreme Court |
Commissioners' Decision.
Error to Circuit Court, Alachua County; A. V. Long, Judge.
Action by John W. Martin, Governor of the State of Florida, for use and benefit of Irene C. Thomas, against Clyde O. Thomas and another. A demurrer to the declaration was overruled, and defendants bring error.
Reversed and remanded.
See also, 126 So. 761.
L. L. Campbell, of Lake Wales, and Zach H. Douglas of Gainesville, for plaintiffs in error.
S. L Scruggs, of Gainesville, for defendant in error.
In the caption of the declaration in this case it appears that 'John W. Martin, Governor of the State of Florida, for use and benefit of Irene C. Thomas,' is plaintiff, and that Clyde O. Thomas and B. Thomas are defendants. The word 'plaintiff' is used several times in the body of the declaration, but in no place, other than in the caption, is it made to appear who is plaintiff.
The basis of the action is a bond given by Clyde O. Thomas, as principal, and B. Thomas, as surety, the condition of which is that, 'if the said Clyde O. Thomas, defendant, shall not depart from the State of Florida during the pendency of that certain suit filed in the Alachua County Circuit Court of the State of Florida, on the Chancery side thereof, wherein Irene C. Thomas is Complainant, and Clyde O. Thomas, is Defendant, without leave of said Circuit Court.'
This bond was given as a result of an order of said court made in the case of Irene C. Thomas v. Clyde O. Thomas, pending in Alachua county, authorizing the issuance of a writ of ne exeat and fixing the amount and conditions of the bond, all of which is shown by the declaration. Plaintiff alleged that the said suit of Irene C. Thomas has not been concluded, and that the defendant and Clyde O. Thomas, notwithstanding the obligation of said bond and without leave of the said chancery court and after making and executing said bond, did leave and depart from the state of Florida and did not return to said state before a personal appearance was necessary to perform an order or decree of the said chancery court contrary to the said terms, stipulations, and conditions of said bond, to the damage of said plaintiff, in that there was then due and owing, 'under and by virtue of said decree and order,' certain sums of money as 'support or alimony' and for solicitors' fees.
To the declaration the defendant interposed a demurrer which was overruled by the court, and this ruling has been assigned as error here.
Section 4201(2561), Compiled General Laws of Florida 1927, provides as follows:
Article 12 of chapter 10, title 3 (sections 4976-4979, Compiled General Laws of Florida 1927), does not expressly provide, as did the original act of November 7, 1828, for the giving of a bond by one taken into custody by a sheriff under a writ of ne exeat, but there can be no question as to one under such restraint having such right.
The copy of the order directing the issuance of the writ of ne exeat annexed to and made a part of the declaration does ot direct to whom the bond should run. The bond taken by the officer and upon which this action is based runs to the 'Governor of the State of Florida and his successors in office.' It does not bind Clyde O. Thomas to pay money then due or which might afterwards accrue by virtue of any decree or order which might be made in the suit instituted against him by Irene C. Thomas or to comply with or to perform any such decree. The only condition named therein is that he 'shall not depart from the State of Florida during the pendency' of that suit.
If this action had been brought by Irene O. Thomas in her own name, it would have to fall upon demurrer, because the bond does not require the said Clyde O. Thomas to pay money to her or to perform any order or decree made in the case that had been instituted by her on the chancery side of the court. The effect of the bond was to require the defendant in that cause to remain in the state of Florida, so that, if the necessity arose, he might be reached by the arm of the court that issued the writ. If Clyde O. Thomas violated the condition of the bond, his offense, if any, was against the court, and such violation was not a breach of any duty or obligation that he owed to Irene C. Thomas.
This court has held that:
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