Vestel v. Eagerton

Jul 8, 1926
Versions:109 So. 456
92 Fla. 215
  1. Where supersedeas bond is given in an appeal from a judgment of ouster in quo warranto proceedings, and in an action at law upon such bond the undisputed evidence shows that the defendant in error in such appeal by reason of the supersedeas was prevented from collecting two months’ salary which the plaintiff in error received, and that the defendant in error expended a certain amount for costs in such appeal, judgment should be given for the plaintiff in said suit on the supersedeas bond for the amount of such salary and the costs proven to have been expended by him.
  2. A supersedeas bond in an appeal from a judgment of ouster in quo warranto proceedings which is conditioned to pay “All damages and costs in the cause if the judgment of ouster should be affirmed,” does not authorize judgment against the defendants in such action on the bond for attorney‘s fees.

KOONCE, Circuit Judge.—The defendant in error sued the plaintiffs in error in the Circuit Court of Orange County upon their supersedeas bond given in an appeal from a certain quo warranto proceedings in Orange County wherein a judgment of ouster had been rendered against the plaintiff in error Vestel and awarding the office of Chief of Police of the City of Orlando to the defendant in error Eagerton.

There are several assignments of error but they may all be disposed of in the consideration of one question, that is what may be included in the term “damages” used in the supersedeas bond. The verdict of the jury and judgment of the court was for the sum of six hundred and twenty-six dollars and twenty cents. The undisputed evidence shows that the amount was arrived at by allowing the sum of Four hundred and fifty dollars as two months’ salary which the defendant in error Eagerton was prevented collecting by reason of the appeal, and which the plaintiff in error Vestel received, also the sum of nine dollars and twenty cents costs paid by him in the suit. The remainder was allowed as attorney‘s fees.

The bond was conditioned to pay “all damages and costs in the said cause” if the judgment in the quo warranto should be affirmed by the Supreme Court. The appeal being dismissed the judgment was affirmed, thereby declaring that the defendant in error, Eagerton, was entitled to the office and the emoluments thereof. Being deprived of such salary for two months by reason of the supersedeas, it logically follows that this was proper damage to be awarded. It was not proper, however, to award any sum for attorney‘s fees.

Inasmuch as the evidence was uncontradicted as to the amount of the salary and the costs expended, the judgment is reversed for the entry of a proper judgment for the amount of the salary, being four hundred and fifty dollars, and costs expended in the suit, being nine dollars and twenty cents, together with the costs in the present suit.

PER CURIAM.—The record in this cause having been considered by this court, and the foregoing opinion prepared under Chapter 7837, Acts of 1919, adopted by the court as its opinion, it is considered, ordered and adjudged by the Court that the decree of the Circuit Court in this cause should be, and the same is hereby, reversed for the entry of a proper judgment for the amount of the salary, being four hundred and fifty dollars, and costs expended in the suit, being nine dollars and twenty cents, together with the costs in the present suit.

BROWN, C. J., AND WHITFIELD, ELLIS, TERRELL AND BUFORD, J. J., concur.