37 Fla. 262 | Fla. | 1896
The defendant in error moves to dismiss the writ of error and to vacate the supersedeas in this cause upon the ground that no sufficient bond for superseding the judgment has been given or filed by the plaintiff in error. In so far as the motion seeks a dismissal of the cause because of the insufficiency of the bond given to operate as a supersedeas, it must be denied. Prior to the adoption of the Revised Statutes the original plaintiff in the court below could not take writ of error without first paying all costs that had accrued up to the time of the issuance of the writ, and, besides, by giving a bond to secure the payment of all future costs that might accrue in the appellate court. McClellan's Digest, sec. 3, p. 840; McIver & Chamberlain vs. Marshall, 24 Fla. 42, 4 South. Rep. 563; Florida Orange Hedge Fence Co. vs. Branham & Co., 27 Fla. 526, 8 South. Rep. 841. But since the adoption of the Revised Statutes the provision obliging an original plaintiff to give bond to secure future costs before he could obtain a writ of error has been repealed, and all that is now necessary for an original plaintiff to procure such writ is to pay all costs that have accrued in the suit up to the time when he prays such writ, unless he desires the writ to operate as a supersedeas, then, in
The original plaintiff below takes the writ here, and there is no complaint that it has not paid the accrued costs in the case, therefore any defect or insufficiency in the bond given by it can not operate to deprive it of its writ of error, but reaches only to the effectiveness of such writ as a supersedeas of the judgment from which it was taken. The suit was replevin brought in 1894 by the plaintiff in error as plaintiff below. The property was seized not replevied by the defendant, but was delivered to the plaintiff below by the officer levying the writ. The trial resulted in a verdict for the.defendant below, and judgment was entered in his favor against the plaintiff for possession of the property, and'also against it and the two sureties on its replevin bond for the sum of $404.10, the adjudged value of the property, in accordance with section 1725 Revised Statutes.
Upon the overruling of the plaintiff’s motion for new trial the court below made an order fixing the amount of the bond to be given on writ of error at $000, in order to have the judgment superseded by the writ, but did not therein prescribe the conditions of the bond. The court below should have prescribed not only the amount but the conditions of the bond, the judgment to be superseded being “in part other than a money judgment,” as provided for in subdivision one of section 1272 Rev. Stat. The plaintiff in error by two sureties executed a bond in the sum of $500 as ordered, the condition of which is, that “if the said obligors shall well and truly perform the judgment of the said Circuit Court in the event of the affirmance of such judgment, and pay all costs that may accrue