Webster v. Wailes

35 Fla. 267

• Court: Supreme Court of Florida
• Decided: January 15, 1895
• Status: Published

Opinion

Taylor, J.:

George W. Webster, the appellant, recovered judgment in the Circuit Court of Duval county in 1885 for '$9,000 against the Florida Railway and Navigation Company, a corporation, in an action for personal injuries received while riding on the company’s train. The railway company took an appeal to this court; and this court, at its January term, 1889, after passing fully upon the questions presented by the record on appeal, affirmed the judgment appealed from, upon the condition that the appellee therein should enter a remittitur for $8,500, the judgment being held to be excessive to that extent. Florida Railway and Navigation Co. vs. Webster, 25 Fla. 394, 5 South. 714. In order to bring that case to this court upon appeal, the defendant railway company, in open court, during the term at which the judgment was rendered, filed with, and had approved by, the clerk of the Circuit Court, the following appeal bond, to wit:

State of Florida, )

County of Duval, )

Know all men by these presents: That we, the Florida Railway and Navigation Company, a corporation created, existing and being under and by virtue of the laws of the State of Florida, and B. S. Henning and S. I. Wailes are held and firmly bound unto George W. Webster in the sum of twelve thousand dollars ($12,-000), for the payment whereof well and truly to be made we hereby bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Signed and sealed this 10th day of March, A. D. 1885. The condition of this obligation is such, that whereas, the said George W. Webster did on the 6th day of March, A. D. 1885, in the Circuit Court of Duval county, Florida, at the called term thereof, in a certain suit therein pending, wherein the said George W. Webster was plaintiff, and the said The Florida Railway and Navigation Company was defendant, obtain judgment against the said The Florida Railway and Navigation Company for nine thousand dollars ($9,000); and whereas, the said The Florida Railway and Navigation Company has applied for and entered its appeal from said judgment to the Supreme Court of the State of Florida, to be held at the city of Tallahassee on the 9th day of June, A. D. 1885; now, if the said The Florida Railway and Navigation Company shall well and truly pay or cause to be paid to the said George W. Webster the debt, damages or condemnation and costs, in case said judgment shall be confirmed by the said Supreme Court, then this obligation to be void, else to remain in full force and virtue.

Executed in the presence of

C. D. Willard,

John E. Hartridge.

Florida Railway and Navigation Co., (Seal.)

By B. S. Henning, Prest. (Seal.)

B. S. Henning, (Seal.)

S. I. Wailes, (Seal.)

Taken before and approved by me this eleventh day of March, A. D. 1885.

T. E. Buckman,

Clerk of the Circuit Court of Duval county, Fla.

Endorsed — Appeal Bond. Piled in open court this 11th day of March, A. D. 1885.

T. E. Buokmatst,

Clerk Circuit Court, etc.

In June, 1889, after the affirmance of the judgment appealed from, George W. Webster, the appellant, instituted his suit upon said appeal bond in the Circuit Court of Duval county, against Sidney I. Wailes, the appellee herein, one of the sureties upon said bond, alone; the declaration, as originally filed, declaring upon it, in the usual form, as a statutory joint and several bond in appeal, and alleging that it had been executed by the corporation, The Florida Railway and Navigation Company, and the defendant Wailes as surety, and filed in the clerk’s office from which said appeal was taken. To the declaration as originally filed the plaintiff attached a copy of said bond as an exhibit of his cause of action. To the original declaration the defendant Wailes demurred upon the ground that the declaration did not state facts sufficient to constitute a cause of action. That it appeared from said declaration and the alleged bond attached thereto as part thereof that the said bond was invalid and void. The defect in the bond set up by this demurrer was that it purported to be the bond of the corporation, The Florida Railway and Navigation Company, but that it was not sealed with the corporate seal of said company, but with a private seal or scroll only. Upon the filing of this demurrer the plaintiff admitted same, and filed an- amended declaration, wherein it is sought to recover upon said bond as a common-law obligation, and wherein it is alleged thatB. S. Henning who signed said bond as the president of said company on behalf thereof was such president, and had full authority to bind said corporation thereby, and that he was authorized for said company to take said appeal from said judgment, and that by reason of the -execution of said bond, the said judgment was superseded, and all remedies upon said judgment on behalf of said Webster were suspended until such time thereafter as the Supreme Court of said State should pass upon the question as to whether the said judgment appealed from should or should not be confirmed, and that said Webster could not enforce said judgment or undertake so to do until after the decision of the Supreme Court, which was not rendered till March 4th, 1889, by the consideration of which said Supreme Court the said judgment was affirmed to the extent of §5,500, of which the said corporation was convicted, and that no part thereof had been paid, etc. To the declaration as amended the defendant again interposed a demurrer upon the grounds: (1) That said declaration does not state facts sufficient to constitute a cause of action; (2) because the alleged obligation sued on is not a common law obligation obligatory upon defendant, and is void as to him; (3) because the alleged obligation is a joint obligation and defendant’s co-obligors are not joined as defendants; (4) the obligation sued on not being such as the statute regulating appeals requires, the Supreme Court never acquired jurisdiction of the case stated in the amended declaration, and the alleged affirmation of the judgment is a nullity. This demurrer was sustained by the court, and final judgment rendered thereon dismissing the cause at plaintiff’s cost. From this judgment this appeal is taken.

There can be no doubt that the appeal bond sued upon in case is not the bond of the corporation, the Florida Railway and Navigation Company, and that it is not bound thereby, because of its lack of the corporate seal of said coumpany. Tanner & Delaney Engine Co. vs. Hall & Mobley, 22 Fla. 391, and authorities there cited. This fact being conceded, the question is presented: is the defendant surety thereon bound thereby, either as a statutory bond, or as a common-law obligation, notwithstanding the fact that the principal named in the bond is not bound thereby. A proper determination of the question requires an interpretation of the intent, purpose and meaning of Sections 2 and 3, p. 840 McClellan’s Digest, making-provision for appeals in civil causes, that are as follows: “Sec. 2. If a party in either of the Circuit Courts of this State shall feel aggrieved by a final judgment, sentence or decree, 'made or pronounced by any or either of said courts, it shall and may be lawful for such party, during the session of the court at which said judgment, sentence or decree is rendered or pronounced, or within thirty days thereafter, to obtain in court, if the appeal be made in term time, or in the clerk’s office, if it be in vacation, his, her, or their appeal to the Supreme Court of this State; and an appeal obtained, shall, in all cases, operate as a supersedeas.” “Sec. 3. No appeal or writ of error shall hereafter be granted to the original plaintiff in any suit, unless said plaintiff shall first pay all costs which may have accrued in and about said suit, up to the time when said appeal or writ of error is prayed; and also enter into bond with one or more securities, in a sum sufficient to cover all the costs which may accrue-in the prosecution of said appeal or writ of error, conditioned to pay the same, if the judgment, sentence or decree of the court shall be affirmed; and if defendant, a bond shall be given with one or more securities in a sum sufficient to cover the amount for which judgment has been given, decree rendered, or sentence pronounced, together with costs, conditioned that the appellant shall pay the debt, damages or condemnation,, and costs, in case the judgment, sentence, or decree of’ the Circuit Court shall be confirmed by the said Supreme Court.” In the case of Hall vs. Penny, 13 Fla. 594, that was a motion to dismiss an appeal taken by the original plaintiff in the court below, this court, citing Union Bank vs. McBride, 2 Fla., held that am appeal under this statute was not “obtained” until all the requirements of this statute were complied-with, and that the giving and approving of a bond was one of the prerequisites of the statute. In that case the .appeal was dismissed because the plaintiff appellant had taken his appeal in term time but had failed to give the requisite bond until some twenty-six days after the close of the term, when the statute required the bond to be given in term time whenever the-appeal was applied for in term time. The question as to whom the bond should be given by in cases where the defendant in the court below became the appellant was not involved, and consequently was not decided, though there is in the decision a dictum to the effect that the party appealing under the statute shall-give bond. The cases of Union Bank vs. McBride, 2 Fla. 7, and Gordon vs. Camp, Ibid, 23, were both motions to dismiss where the appeal or writ of error was taken by the original plaintiff in the court below; and the dismissals of the appeals resulting in both cases was from a failure to give the bond required by the-statute, and, in the first case, also because of a failure to pay the accrued costs. In neither of these cases did the question arise as to who was required to give the bond in a case where the defendant in the court below-was the appellant. The only case passed upon, by this court where the question was directly presented as to whether it was necessary for the appellant himself to give the bond where he was the defendant in the court below, is the case of Savannah, Florida & Western Ry. Co. vs. Clark, 23 Fla. 308, 2 South. 667. In that case the defendant appellant was a corporation, and the appeal bond was signed for it by one Hardaway, “as agent.” Whether the bond was sealed with the corporate seal or not, is not stated; neither is it stated whether the bond had sureties. The motion there involved was to dismiss the appeal on the ground that the bond therein was not executed as required by law. The appeal was dismissed with the curtly expressed opinion by the court that “this is not the bond of the defendant, it is the bond of the agent. Our statute requires that the defendant shall give bond.” We realize fully the importance of maintaining the stability and uniformity of the judicial interpretation of our laws, and therefore regret to find ourselves under the necessity of disagreeing with and overruling this utterance of the court, that resulted, we think, from a hasty consideration of the question in a case that involved at the time no more important results than the mere dismissal of an appeal. In the subsequent case before this court of Florida Orange Hedge Fence Co. vs. Branham & Co., 27 Fla. 526, 8 South. 841, decided at the January Term, 1891, the same question, practically, was involved, and was exhaustively considered. The motion there made was to dismiss a writ of error and to vacate a supersedeas on the ground that the bond filed was not executed in conformity to the requirements of the statute, in that some of the plaintiffs in error had not signed the same. The court, following several English and American decisions there held in effect that it was not necessary that the bond, “to be effectual, in such a case should be executed by the plaintiff in error himself so long as it complied with the statute as to the execution thereof by sureties. Section 3 of our statute above quoted in reference to appeals, itself, creates a decided difference between the bond it requires of the original plaintiff below when he becomes appellant, and the bond it prescribes for the defendant below when he appeals. The language of the statute is, that ‘ ‘no appeal or writ of error shall hereafter be granted to the original plaintiff in any suit, unless said plaintiff shall first pay .all costs, * * and also enter into bond with one or more securities, sufficient to cover, and conditioned to pay, the costs which may accrue in the prosecution of said appeal.” If the defendant in the court below appeals, the language of the statute as to him is: ‘ ‘and if defendant, a bond shall be given with one or more securities” in a sum sufficient tu cover, and conditioned to pay, the amount for which judgment has been given, etc. When the defendant appeals there is no reason why he himself should be required to execute the bond. The amount that he has to pay is supposed to be already adjudged against him in the plaintiff’s favor; his obligation to pay it has already passed through judicial investigation, and has become an adjudged obligation. If he desires to subject the plaintiff to further delay in reaping the fruits of his litigation, by appealing to a higher court he is required to furnish other and further security than himself and his own responsibility, for the adjudged amount against him. So far as he individually is concerned, a bond, conditioned for the payment by him of the amount already adjudged against him, can add nothing whatever to the adjudicated, obligation he is already under to pay it. Consequently, where the defendant appeals, the statute requires that a bond shall be given with one or more sureties. We do not think that it could have been the purpose of the statute to require the defendant, when obtaining an appeal, to go through so useless a ceremony a.s to obligate-himself by bond to pay an amount that he has been. already adjudged to pay by a court of competent authority. And we think that in such cases where the-defendant files a bond, with one or more sureties, in the amount, and conditioned as this statute provides,, it is a sufficient compliance with the statute, whether the defendant himself does or does not execute such-bond. The obligation resting upon the sureties by virtue of the condition of such a bond does not depend upon tho non-payment by the defendant appellant of the obligation created for him in and by the terms of the bond, but depends upon his non-payment of the adjudged obligation already hanging over him by virtue of t\e judgment from which he appeals. We think, for aught that is shown in this record, that' the bond sued upon is a good statutory bond and that the defendant surety sued is fully bound thereby. We-think further that the plaintiff was premature in admitting the demurrer to his original declaration in the cause, but that, notwithstanding this, the declaration' as amended was sufficient in its allegations to warrant a recovery, and that, therefore, there was error in sustaining the defendant’s demurrer thereto.

The judgment appealed from is reversed, with directions to overrule the defendant’s demurrer to the plaintiff’s amended declaration.