35 Fla. 267 | Fla. | 1895
George W. Webster, the appellant, recovered judgment in the Circuit Court of Duval county in 1885 for '$9,000 against the Florida Railway and Navigation Company, a corporation, in an action for personal injuries received while riding on the company’s train. The railway company took an appeal to this court; and this court, at its January term, 1889, after passing fully upon the questions presented by the record on appeal, affirmed the judgment appealed from, upon the condition that the appellee therein should enter a remittitur for $8,500, the judgment being held to be excessive to that extent. Florida Railway and Navigation Co. vs. Webster, 25 Fla. 394, 5 South. 714. In order to bring that case to this court upon appeal, the defendant railway company, in open court, during the term at which the judgment was rendered, filed with, and had approved by, the clerk of the Circuit Court, the following appeal bond, to wit:
State of Florida, )
County of Duval, )
Know all men by these presents: That we, the Florida Railway and Navigation Company, a corporation created, existing and being under and by virtue of the laws of the State of Florida, and B. S. Henning and S. I. Wailes are held and firmly bound unto George W. Webster in the sum of twelve thousand dollars ($12,-000), for the payment whereof well and truly to be
Executed in the presence of
C. D. Willard,
John E. Hartridge.
Florida Railway and Navigation Co., (Seal.)
By B. S. Henning, Prest. (Seal.)
B. S. Henning, (Seal.)
S. I. Wailes, (Seal.)
Taken before and approved by me this eleventh day of March, A. D. 1885.
T. E. Buckman,
Clerk of the Circuit Court of Duval county, Fla.
T. E. Buokmatst,
Clerk Circuit Court, etc.
In June, 1889, after the affirmance of the judgment appealed from, George W. Webster, the appellant, instituted his suit upon said appeal bond in the Circuit Court of Duval county, against Sidney I. Wailes, the appellee herein, one of the sureties upon said bond, alone; the declaration, as originally filed, declaring upon it, in the usual form, as a statutory joint and several bond in appeal, and alleging that it had been executed by the corporation, The Florida Railway and Navigation Company, and the defendant Wailes as surety, and filed in the clerk’s office from which said appeal was taken. To the declaration as originally filed the plaintiff attached a copy of said bond as an exhibit of his cause of action. To the original declaration the defendant Wailes demurred upon the ground that the declaration did not state facts sufficient to constitute a cause of action. That it appeared from said declaration and the alleged bond attached thereto as part thereof that the said bond was invalid and void. The defect in the bond set up by this demurrer was that it purported to be the bond of the corporation, The Florida Railway and Navigation Company, but that it was not sealed with the corporate seal of said company, but with a private seal or scroll only. Upon the filing of this demurrer the plaintiff admitted same, and filed an- amended declaration, wherein it is sought to recover upon said bond as a common-law obligation, and wherein it is alleged thatB. S. Henning who signed said bond as the president of said company on behalf thereof was such president, and had full authority to bind said corporation thereby, and that he
There can be no doubt that the appeal bond sued upon in case is not the bond of the corporation, the Florida Railway and Navigation Company, and that it is not bound thereby, because of its lack of the cor
The judgment appealed from is reversed, with directions to overrule the defendant’s demurrer to the plaintiff’s amended declaration.