Bacon v. Green

36 Fla. 313 | Fla. | 1895

Mabry, J.:

From the record before us it is made to appear that the attachment issued in the suit of L. N. Oreen against Mark R. Bacon et al. was levied upon Bacon’s interest in certain abstract books, and upon a traverse of the affidavit for the attachment the latter was sustained. It is further made to appear that a final j udgment was subsequently rendered in Oreen’s favor and the property attached condemned to be sold to pay said judgment, and also that an execution had been issued and levied upon the property attached before the supersedeas was perfected by executing the required bond. After the supersedeas bond was filed the sheriff suspended further proceedings under the execution, but still retains possession of the property seized under the attachment writ and condemned to be sold to pay the judgment. No new process was issued after the perfection of the supersedeas, and no further proceedings were had by the sheriff under the judgment except to retain the property which had been in custody since the date of the levy of the,attachment writ. The common-law rule is that a supersedeas, in order to stay proceedings on an execution, must be perfected before the issuance and levy of the execution, and where a sheriff has made a levy before the supersedeas attaches, he must proceed to sell without regard to a subsequent allowance of such writ. Meriton vs. Stevens, Willes’ Rep. 271; Boyle vs. Zacharie, 6 Peters, 648; North Western Express Co. vs. Landes, 6 Minn. 564. Our statute provides when a writ of error shall operate as a supersedeas as of course, and when it shall operate as a supersedeas only by virtue of a special order made for that purpose. When such order is made, as was done in the case before us, and bond given, the clerk, or judge if there be no clerk, shall endorse on the writ of error that it shall be a supersedeas, and the further provision of the statute is, that “the said writ and endorsement shall be obeyed as such, suspending all further proceedings in relation to said judgment, in and by the officers of the said court below.” R. S. sec. 1272. The statute in force on the subject prior to the adoption of the revision was substantially the same as above. Thompson’s Digest, page 447, sec. 4. The provision of the statute as to the supersedeas suspending all further proceedings in relation to the judgment has the effect, in our opinion, to change the common-law rule as to a sale under an execution levied, but not completed by actual sale, before supersedeas perfected. The common-law theory that the levy and sale under an execution are indivisable, and the execution must be regarded as executed from the time of levy, is overcome by the provision of our statute that the supersedeas suspends all further proceedings in relation to the judgment. The sale under an execution emanating from the judgment would be a further proceeding in relation to the judgment, within the meaning of the statute.

Counsel for the rule contend that the effect of the supersedeas is not only to suspend all further proceedings in relation to the judgment; but to restore the property levied upon under the execution to plaintiff in error, and that the supersedeas bond affords the relief or security to defendant in error in case he sustains damage for a wrongful prosecution of the writ. The record before us on which the supersedeas was granted does not present a case of a simple personal judgment from which an execution had issued and was levied upon personal property. Along with the action of assumpsit the plaintiff below sued out an attachment which was levied upon property which was condemned by the judgment of the court to pay the recovery had in the cause. Our statute provides for the replevy of personal property seized under an attachment, or the giving of a forthcoming bond to the officer making the levy, but nothing of the kind was done in this case. The property attached remained in the custody of the law in the hands of the sheriff until condemned by the judgment of the court to be sold to pay the debt. The levy of the attachment upon the property of the defendant below gave the plaintiff a specific lien upon it, subject to pre-existing liens if any existed, arid no forthcoming bond or replevy having been made of the property the plaintiff acquired an adjudicated right to have the specific property seized, sold to pay the judgment obtained in the cause. Zinn, Aldrich et al. vs. Dzialynski, 14 Fla. 187.

A supersedeas has the effect to suspend all further proceedings in relation to the judgment, but it does not, like a reversal, annul it. Being preventive in its effect, it does not undo or set asside what the trial court has adjudicated, bnt simply stays further proceedings in relation to the judgment appealed from until the appellate court acts upon the decision of the lower court. Until reversed the judgment will be binding upon the parties as to every question directly decided. Nill vs. Comparet, 16 Ind. 107; Randles vs. Randles, 67 Ind. 434; Runyon vs. Bennett, 4 Dana, 599; Curtis vs. Root, 28 Ill. 367; Low vs. Adams, 6 Cal. 277. Applying this rule to the facts before us we do not think that a supersedeas will have the effect to restore to the plaintiff in error 'personal property attached and not replevied, and thereby brought into "the custody of the law, and condemned by the judgment of the court to pay the debt recovered, since to .give it such effect, would be to undo what had been expressly adjudicated by the trial court. The defendant below had the right und er the statute to release the property from the custody of the sheriff by a replevy or forthcoming bond, but not having done so the property was subject to be appropriated by the judgment of the court to pay plaintiff’s demand, and this is what the court did in reference to the property mentioned.

In the case of State vs. Johnson, 13 Fla. 33, a receiver was appointed by an interlocutory order, from which an appeal was taken and supersedeas allowed. In speaking of the effect of the supersedeas the court says: “It does not make unlawful an act done in pursuance of the order before the appeal was taken, but it forbids the court and its officers further to act. No new rights having been created, and the duties of the receiver having been superseded, the bond standing in the place of the property in his hands, and he having been notified thereof by proper process, it was his duty to restore that which had come to his hands, to the parties from whom it had been taken and withheld; for his authorty to take, being inoperative by the suspension, his authority to hold was equally so, both being derived from the same order.” The court says-in the same connection: “We have seen that the effect of a supersedeas, upon a final decree, depended on what had been done in pursuance of it. A final decree is supposed to be pronounced with deliberation,, upon competent proofs, and with due notice to parties. Hence, new rights, duties and interests may be created which become fixed and irrevocable; but it is not so of' an interlocutory order, made at the outset, and perhaps before the parties having large interests at stake are-summoned, or even before they suspect the attack of the complaining party.” The statutory condition of' the supersedeas bond in case of a money judgment is, to pay the amount of the judgment with interest and costs, if the same be affirmed by the appellate court. The property attached and not replevied as provided by the statute will remain subject to the final determination of the cause in case of a reversal of the judgment here, and according to the condition of the supersedeas bond it would not secure the forth-coming of the property attached in case it is released by the-sheriff pending the writ of error. Our view is that personal property attached, and not replevied, and condemned by the judgment of the court to pay the sum recovered by the plaintiff below will not be restored to the possession of the plaintiff in error by virtue of a supersedeas granted on the final judgment rendered in the cause. To give it such effect would be to undo what had been expressly determined by the trial court. We do not understand that the case of People vs. Judges, 1 Wend. 81, is in conflict with our conclusion. The defendant had four days after judgment rendered in which to sue out a writ of error and perfect a supersedeas, and while the plaintiff below bad the right to sue out execution within the four days, yet it was subject to the statutory right of the ■defendant to perfect the supersedeas within the time mentioned. Defendant having perfected his supersedeas within the time allowed by statute, was entitled to be protected from the enforcement of the judgment until the determination of the suit in the appellate ■court. We have no such question in the case before us.

The result is that, as shown by the answers to the rule nisi, and which must be considered as true on the ■demurrer thereto, the sheriff of Marion county was justified in retaining the property seized under the writ of attachment and condemned to pay the judgment of the court in favor of the plaintiff below, notwithstanding the supersedeas granted, and an order will therefore be made overruling the demurrer of plaintiff in error.