Poyntz v. Reynolds
Poyntz v. Reynolds
Opinion of the Court
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
Reference
- Full Case Name
- Nat Poyntz, J. D. Beggs as Trustee v. William H. Reynolds, Trustee, Appellee Benjamin B. Poyntz v. William H. Reynolds, Trustee
- Cited By
- 14 cases
- Status
- Published
- Syllabus
- APPELLATE PRACTICE—SUPERSEDEAS BOND—RULES OF PRACTICE-ABSTRACTS OF RECORD. 1. The rules of practice for the government of the Supreme Court, adopted at its 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 brouyht to the Supreme Court prior to that date, except in those instances and in those respects wherein. said rules themselves in express terms provide for their application to causes brought here prior to that date. 2. The special rules of practice for the government of the Circuit. Courts in the preparation of bills of exceptions and transcripts of records in civil causes, adopted at the June term, 1895, of this court did not go into effect or become operative until the first day of December, 1895, and do not apply to or affect any bill of exceptions or transcript of record made up and filed in the Sumpreme Court prior to December first, A, D. 1895. 8. Rule 20 of said rules of practice for the Supreme Court, making-provision for the filing of abstracts of record, expressly provides that its provisions shall apply to all civil causes made returnable to the January term, 1896, of this court, regardless of the date when the transcript of the record may have been made up or filed. 4. An abstract of the record, made up in accordance with rule 20 of the rules of practice of this court, need not be, and should not be, a copy of the record; but, in order to comply with the rule, it should contain, in a clear and concise form, the material substance of the pleadings in the cause, in the order by dates in which they were filed, the material substance of the-rulings of the court thereon, the substance of the issues on which the case was tried, and the material facts on which the issues were determined, together with a concise statement of the assignments of error relied upon. All'of which must be-in as concise and condensed form, with all immaterial and unnecessary verbiage omitted, as is practicable and consistent with a fair and clear presentation of all matters and questions to be passed upon here. Brevity, clearness and conciseness should be the objects striven for in the iireparation of such an abstract, without losing sight of the fact that it must contain such a full and fair presentation of the case as that this court may use it alone in trying and passing upon all the questions involved, without referring at all to the certified transcript of' the record sent here by the clem. 5. If the provisions of said rules requiring records, briefs, abstracts of records and other papers for use in this court to be clearly and legibly type-written or printed, and with blade ink, are not strictly complied with, it is cause for dismissal. When such papers are filed here blurred, dim and indistinct, and in other than black ink, it is a violation of the rules. 6. Section 1272 Rev. Stat. provides that supersedeas &07ids shall have two obligors, which means that they shall have two sureties, both of whom must be bound for the whole amount of the bond. Such a bond executed by several sureties, each of whom obligates himself for only such a fractional part of the bond as that the sum of the aggregation of all of their liabilities thereon equals simply the full sum of the bond, does not comply with the statute, as it gives the obligee in the bond but one surety for the full amount. If it be permissible thus to split up and distribute the principal of such a bond among numerous sureties, so that each shall be bound only for a fractional part thereof, there should be enough of them bound for the fractional parts into which it is distributed so that the obligee in the bond shall have tivo sureties in the aggregate for the full amount thereof. 7. A non-resident of this State who does not own sufficient property here to answer the amount of a supersedeas bond upon which he becomes surety in the courts here, is not a “good and sufficient obligor” upon'such bond, within the contemplation of sec. 1272 Rev. Stat. Thirty days allowed in which to file abstracts of record and supersedeas bond; otherwise motions to dismiss appeal and vacate supersedeas will be granted.