65 Fla. 61 | Fla. | 1913
The plaintiff in error here filed its bill in chancery in the Circuit Court for DeSoto County against P. R. Read, W. T. McCormick and E. L. Blood, doing business under the trm name of The P. R. Read Construction Company, and W. W. Langford, doing business under the firm name of Simmons, Langford & Company. The following final decree was rendered in such cause:
“This cause coming on for final hearing upon the evidence as reported by the master to the court between the complainant and Simmons, Langford & Company, one of the defendants, a decree pro confesso having been duly taken and entered against the other defendants, and, upon considering the evidence so taken and reported by the master, the court finds that the ecpiities are in favor of the complainant, as follows:
That P. R. Read and W. T. McCormick and E. L. Blood, doing business as the P. R. Read Construction Company, are indebted to the complainant herein in the sum of $1,868.50, with interest thereon from August 2nd, 1907, at eight per cent per annum, aggregating $2,532.22; that said company assumed the contract which complainant had with P. R. Read; and that the complainant gave to the defendant, W. W. Langford, doing business as Simmons, Langford & Company, due notice of its claim against the P. R. Read Construction Company, and that at the time of giving said notice by the said complainant the said Simmons, Langford & Company were indebted to the said P. R. Read Construction Company in a sum of money in excess to the amount due by the P. R. Read Construction Company to the complainant; and that the
It is thereupon ordered, adjudged and decreed that the complainant, the South Florida Lumber & Supply Company, a corporation aforesaid, do have and recover of and from P. R. Read, W. T. McCormick and E. L. Blood, doing business under the firm name of P. R. Read Construction Company, the sum of twenty-five hundred thirty-two and 89/100 dollars as principal and interest, and the sum of two hundred and fifty-three dollars as attorney's fee for the complainant, and all the costs of suit in this case, the same to be assessed by the clerk of said court.
It is also further ordered, adjudged and decreed that the complainant do have and recover of and from W. W. Langford, doing business as Simmons, Langford & Company, the sum of twenty-five hundred thirty-two and 82/100 dollars as principal and interest and the sum of two hundred and fifty-three dollars as an attorney’s fee for the complainant, and all the cost of this suit, the same to be assessed by the clerk of this court.
It is also further ordered, adjudged and decreed that in default of the payment of said sums of money by the P. R. Read Construction Company or the said Simmons,
Done and ordered this 12th day. of January, 1912, at Bartow, Florida, at chambers.”
From this decree Langford alone entered his appeal to this court and we rendered an opinion therein, which is reported in 63 Fla. 484, 59 South. Rep. 12, as Langford, v. South Florida Lumber & Supply Company. As a reference to such opinion will show we reversed such decree as to Langford, upon the grounds and for the reasons therein stated, but we said nothing as to that pari of the decree, wherein it was “ordered, adjudged and decreed that the complainant, the South Florida Lumber & Supply Company, a corporation aforesaid, do have and recover of and from P. R. Read, W. T. McCormick and E. L. Blood, doing business under the firm name of P. R. Read Construction Company, the sum of twenty-five hundred thirty-two and 89/100 dollars, as principal and interest, and the sum of two hundred and fifty-three dollars as attorney’s fee for the complainant, and all the costs of suit in this case, the same to be assessed by the clerk of said court,” such parties defendant not being before this court or seeking to have the decree reversed as to them. On the 23rd day of July, 1912, after the going down of the mandate from this court in such cause,- the plaintiff in error here caused an execution to be issued upon such decree against P. R. Read, W. T. Me
We now approach the main contention of the defendant in error that our opinion rendered in Langford v. South Florida Lumber & Supply Company, supra, wherein we reversed the decree as to Langford, is decisive of the point which is presented here upon this writ of error. To this contention we cannot agree. If we had reversed the entire. decree, it would have undoubtedly left the case as if there had been no decree, as the defendant in error contends. See our holding and reasoning in Capital City Bank v. Hilson, supra. But we did not reverse the entire decree, nor could w’e have done so, as the defendants other than Langford were not before us! We did not undertake to disturb or interfere with that portion of the decree which gives a judgment against the defendant in error. As to him and his co-partners the decree remains in full force and stands unreversed. This being true, the execution as issued thereon against Read and his copartners was properly issued, and the trial court erred in directing a stay of such execution and suspending all proceedings thereon. What we have said is sufficient for a proper disposition of the case. We would refer also to Macfarlane v. Southern Lumber & Supply Co., 47 Fla. 271, 36 South. Rep. 1029.
Judgment reversed.