34 Fla. 449 | Fla. | 1894
The defendant in error recovered judgment in the Circuit Court of Marion county on the 14th day of October, 1893, jointly, against W. C. Jeffords, E. C. Ilood, Jr., and George A. Nash, as former partners under the firm name of W. C. Jeffords & Company. Prom this judgment George A. Nash and E. O. Hood, J r., alone took writ of error to this court; the writ being issued on the 14th day of December, 1893, returnable to the January Term of this court, 1894.
The defendant in error now moves to dismiss the writ of error upon the following grounds: 1st. Because the judgment sought to be reviewed is against three defendants jointly, and only twTo of them join in suing out the writ of error. 2nd. Because M. P. Hood, one of the sureties on the supersedeas bond filed by the plaintiffs in error, is a practicing attorney and member of the bar of said Circuit Court. The two plaintiffs in error to meet this motion make the
The preponderance of the proofs submitted upon the second ground of the motion of the defendant in error to dismiss, to the effect that M. F.'Hood, one of the sureties on the supersedeas bond, is an attorney and member of the bar, and therefore disqualified from becoming a surety upon such a bond, we think is with the defendant in error, and that Mr. Hood’s presence as a surety upon said bond makes it obnoxious to rulo five of Circuit Court rules. Love vs. Scheffelin & Co., 7 Fla., 40; Sedgwick vs. Dawkins, 15 Fla., 572. But it appears from affidavits filed with the motion that the plaintiffs in error were really not at fault in securing the attorney, M. F. Hood, as their surety; that he told them before becoming surety on said bond that he w;¡", not an attorney and not a member of the bar. IMeitlr'i' does it appear that the surety was of counsel in the cause. Under these circumstances, where the party has been innocent of any improper intention in making up his bond, excelling it and giving it in good faith.
The motion of the plaintiffs in error to amend the writ of error and scire facias ad audiendum errores, and for summons to the judgment defendant, W. C. Jeffords, is therefore granted. The plaintiffs in error will also be allowed thirty days within which to give a new bond, and upon their failure to give the same within that time, the motion of the defendant in error to dismiss will be granted; otherwise it will be denied.