Simms v. City of Tampa

Supreme Court of Florida

Simms v. City of Tampa

52 Fla. 641

CourtSupreme Court of Florida

DecidedJune 15, 1906

StatusPublished

Cited by4 cases

This text of 52 Fla. 641 (Simms v. City of Tampa) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Simms v. City of Tampa, 52 Fla. 641 (Fla. 1906).

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Opinion

Taylor, J.

(after stating the facts) : There was no error in the order made and questioned here. It is well settled that restitution, on reversal of a judgment, can be compelled only from parties to the record, or from their beneficial assignees, or, in case of the death of the execution plaintiff, from his executor or administrator. Restitution cannot be compelled from third persons, strangers to the record, who were hona fide purchasers at a sale under process dependent upon a judgment subsequently reversed, or who acquired Iona fide collateral rights there[645]*645under, and tlieir rights are in no way affected by the subsequent reversal of the judgment. Particularly should restitution be denied as against a stranger to the record when sought in a summary manner by motion, rule or petition as was attempted in this case. Rex & Regina v. Leaver, 2 Salk. 587; Bank of United States v. Bank of Washington, 6 Pet. (U. S.) 8; Stroud v. Casey, 25 Tex. 740; 18 Ency. Pl. & Pr., 880; Griggs v. Detroit & Milwaukee Ry. Co., 10 Mich. 117; Livingston v. Freeland, 3 Barb. Chy. 510; Florida Central R. R. Co. v. Bisbee, 18 Fla. 60; Horton v. Wilde, 8 Gray (Mass.) 425; Hanschild v. Stafford, 27 Iowa 301; Field v. Maghee, 5 Paige Chy. 539; Garvin v. Watkins, 29 Fla. 151, 10 South. Rep. 818.

Charles Wright, the purchaser at the master’s sale under the decree subsequently reversed, was a stranger to the record in the cause in which such decree was rendered, and he, for aught that is shown to the contrary in the record. before the court, was a bona -fide purchaser of the property sold under said decree. There was no supersedeas of such decree on the former appeal therefrom. His grantee, the Jetton-Dekle Lumber Company, was also a stranger to such record. Under these circumstances the court below made the proper order in denying and dismissing the petition for restitution. The order or decree of the court below appealed- from herein is hereby affirmed at the costs of the appellants. ,

Hocker and Parkhill, JJ., concur. Cockrell and Whitfield, JJ., concur in the opinion. Shackleford, C. J., disqualified, took no part.

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Taylor, J.

(after stating the facts) : There was no error in the order made and questioned here. It is well settled that restitution, on reversal of a judgment, can be compelled only from parties to the record, or from their beneficial assignees, or, in case of the death of the execution plaintiff, from his executor or administrator. Restitution cannot be compelled from third persons, strangers to the record, who were hona fide purchasers at a sale under process dependent upon a judgment subsequently reversed, or who acquired Iona fide collateral rights there[645]*645under, and tlieir rights are in no way affected by the subsequent reversal of the judgment. Particularly should restitution be denied as against a stranger to the record when sought in a summary manner by motion, rule or petition as was attempted in this case. Rex & Regina v. Leaver, 2 Salk. 587; Bank of United States v. Bank of Washington, 6 Pet. (U. S.) 8; Stroud v. Casey, 25 Tex. 740; 18 Ency. Pl. & Pr., 880; Griggs v. Detroit & Milwaukee Ry. Co., 10 Mich. 117; Livingston v. Freeland, 3 Barb. Chy. 510; Florida Central R. R. Co. v. Bisbee, 18 Fla. 60; Horton v. Wilde, 8 Gray (Mass.) 425; Hanschild v. Stafford, 27 Iowa 301; Field v. Maghee, 5 Paige Chy. 539; Garvin v. Watkins, 29 Fla. 151, 10 South. Rep. 818.

Charles Wright, the purchaser at the master’s sale under the decree subsequently reversed, was a stranger to the record in the cause in which such decree was rendered, and he, for aught that is shown to the contrary in the record. before the court, was a bona -fide purchaser of the property sold under said decree. There was no supersedeas of such decree on the former appeal therefrom. His grantee, the Jetton-Dekle Lumber Company, was also a stranger to such record. Under these circumstances the court below made the proper order in denying and dismissing the petition for restitution. The order or decree of the court below appealed- from herein is hereby affirmed at the costs of the appellants. ,

Hocker and Parkhill, JJ., concur. Cockrell and Whitfield, JJ., concur in the opinion. Shackleford, C. J., disqualified, took no part.

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