37 Fla. 533 | Fla. | 1896
The two cases stated separately as above are in fact but one case, but the appellee therein now makes separate motions to dismiss, and to vacate the supersedeas therein, treating them in his motions as though they were separate and distinct cases as above styled. For
As to the first and second grounds of this motion, there is no merit in them. The record in the cause was filed here on the 10th day of September, 1895, and the appeal was entered prior to that date. The rules of practice for the government of this court, adopted at the June term, 1895, did not go into effect or become operative until the 15th day of October, 1895, and do not apply to or affect any cause brought here prior to the last named date, except in those instances and in those respects wherein the rules themselves in express terms provide for their application to causes that may have been brought here prior to that date. All of which will plainly appear from an at tentive reading of the order of this court adopting said rules. The rules of practice, adopted by this court at its June term, 1895, for the government of the Circuit Courts in the preparation of bills of exceptions and transcripts of records in civil causes did not go into effect or become operative, by the express terms of the order of the court adopting them, until
The motion to dismiss Case No. 2 is upon the ground that the appellant Benjamin B. Poyntz was not a party to the cause in the court below, nor privy to the record in same, nor is he injured by the decree appealed from. The record does not sustain the contentions of. fact' announced in this motion. The record shows that Benjamin B. Poyntz was directly interested in the subject-matter of the litigation, and that he made a proper effort to be made a party to the record. Ballard vs. Kennedy, 34 Fla. 483, 16 South. Rep. 327. The motion to dismiss Case No. 2, upon the ground urged for dismissal, is denied.
The motions for vacation of the supersedeas in each of said cases are upon the ground of the insufficiency of the bonds both as to the amount and as to the sureties thereon, and because the appellants have failed to pay the costs accrued in the cause up to the taking of the appeals. In Case No. 1 there appears no order of the Circuit Judge fixing the amount and conditions of the bond to be given in compliance with the order of supersedeas, as is required by secs. 1458 and 1272 Rev. Stat., the decree appealed from being other than a decree for money merely. The appellants, however, without such order, executed and filed a bond with the clerk below on October 26th, 1895, that is approved by said clerk, in the penal sum of $6,300, with six sureties, one of such sureties obligating himself only in the sum of $2,000, four others of them in the sum of $1,000 each, and the.sixth surety in the sum of $300. The statute (sec. 1272 Rev. Stat.) on the subject of
In Case No. 2 the bond is in the sum of $7,500, and is signed by two sureties, who obligate themselves for the full amount thereof, and by a third surety who justifies for only $1,500. One of the sureties, however, who stands for the full amount of the bond is shown to be a resident and citizen of another State, and to havé no property in this State. While our statute does not in express terms require the sureties upon such bonds to be residents or citizens of this State, yet we think that when the statute speaks of sureties, it contemplates property holders in this State of sufficient property means located here within the jurisdiction of our courts as to make them aptly described here by the words of the statute, “good and .sufficient obligors.” It would be opening too wide a
The appellants in each of- said cases appeal in the-capacity of defendants below against whom a decree-has been rendered. In appeals by such parties, payment of costs is not a prerequisite to the appeal, as it-is in cases where the plaintiff below who has failed takes the appeal.
The appellants in both cases will be allowed thirty days from the filing of this opinion in which to file a new supersedeas bond in such sum, and upon such conditions, as the Judge of the Circuit Court may prescribe; otherwise the motion of the appellee to vacate the supersedeas in each of said two cases will be granted. There need not be but one supersedeas bond, in which all of the appellants in the two appeals as above stated should be joined. There is no necessity for B. B. Poyntz to execute a separate supersedeas