Thalheim v. Camp Phosphate Co. ( 1904 )

Shackleford, J.

(after stating the facts).—The sole question presented to us for decision is as to what effect the perfecting of the supersedeas had upon the right of possession to the phosphate rock so levied upon by said sheriff. Was the petitioner entitled to the return of said rock and said check? If so, then the respondent is technically, at least, guilty of contempt. It can hardly be contended that his conduct was intentionally and wilfully contumacious; if guilty of disobedience at all, his disobedience is qualified by circumstances which should fairly exempt him from serious blame. Strickland v.Knight, 47 Fla. 327, 35 South.Rep. 868; Haines v. Haines, 35 Mich. 138. As was said in the first headnote in State ex rel. Duffy & Behan v. Civil District Court for Parish of Orleans, 111 La. —, 36 South. Rep. 315, “A proceeding directed by a court against a party to show cause why he should not be punished for contempt of its authority in refusing to obey its orders is not one designed for the benefit of one or more of the litigants, though infliction of punishment upon that party under a finding that he was guilty as charged may inure to the benefit of the mover in the rule by way of consequence or result through his final compliance with the order. The object and purpose of the proceeding is to vindicate the authority and dignity of the court.” Also see Haines v. Haines, supra, text 144.

The answer to the question which is now presented to us for decision has already been foreshadowed by previous decisions of this court. In Archer v. Hart, 5 Fla. 234, text 253, it was said that “if the execution of the decree had been commenced, the supersedeas would arrest the proceedings at the stage in which they were when the supersedeas was allowed.” In County Commissioners of Polk County v. Johnson & Co., 21 Fla. 577, it was said that “A supersedeas to a final judgment not performed stays the execution thereof, but does not undo the performance of such judgment which has been fully performed.” In the seventh headnote in State et al. v. The Jacksonville, Pensacola and Mobile R. R. Co., 15 Fla. 201, it was said that “A supersedeas operates to suspend the action and power of the inferior court in the matter appealed from.” In the first headnote in Bacon v. Green, 36 Fla. 313, 18 South. Rep. 866, it was said that “at common law a supersedeas, in order to stay proceedings on an execution, must be perfected before the issuance and levy of the execution; and where a sheriff made a levy before a supersedeas attached, he was required to proceed to sell without regard to the subsequent allowance of the supersedeas. The effect of the statute (R. S. sec. 1272) providing that the allowance and perfection of a supe'rsedeas shall suspend all further proceedings in relation to the judgment, is to change the common law rule requiring or permitting a sale of property after the perfection of the supersedeas, though the levy should be made before the allowance of such writ.”

It was further held in said last cited case that a supersedeas perfected on a writ of error from a judgment will not have the effect to" restore personal property to the possession of the defendant which has been previously attached and specifically condemned by final judgment to sale, said property still remaining in the hands of the sheriff at the time of the perfecting of the supersedeas. If the lien so created upon said property can not be impaired and the possession thereof divested by the suing out of a writ of error and the perfecting of a supersedeas, we do not see how the lien created by the levy of an execution or the possession of the sheriff by virtue thereof can be impaired or divested by like proceedings.

We are of the opinion that it is but carrying the reasoning of this court in the cases cited to its logical conclusion to hold that the perfecting of a supersedeas stays further proceedings, but does not interfere with what has already been done. Board of Commissioners v. Gorman, 19 Wall, 661. If this be true, it would seem to follow that the levy of an execution is not defeated by a subsequent wsit of supersedeas, but that the only effect a supersedeas can have in such a case is to stay all further proceedings, letting things which have already been done remain in statu quo, Freeman v. Dawson, 110 U. S. 264, 4 Sup. Ct. Rep. 94, and authorities cited therein; 11 Amer. & Eng. Ency. of Law (2nd ed.) 698; Runyon v. Bennett, 4 Dana (Ky.) 599. First National Bank of Hastings v. Rogers, 13 Minn. 407; Robertson v. Davidson, 14 Minn. 554; Woolfolk v. Bruns, 45 Minn. 96, 47 N. W. Rep. 460; Foster v. Kansas, 112 U. S. 201, 5 Supt. Ct. Rep. 8, 97; 1 Freeman on Executions, sec. 32a; 2 Ibid., sec. 271a.

We recognize that the authorities upon this point are in irreconcilable conflict. See The People v. The Judges of New York Common Pleas, 1 Wend. 81, and cases cited in note. Some other courts have followed New York to the effect that a supersedeas will result in a restitution of the property levied on, no sale having taken place, but we are of the opinion that the weight of authority as well as the reason, of the law is otherwise. As was said in Boyle v. Zacharie, 6 Pet. 648, text 659, “Nothing is better settled at the common law than the doctrine that a supersedeas, in order to stay proceedings on an execution, must come before mere is a levy made under the execution.” See United States v. Dashiel, 3 Wall. 688, text 700.

Section 1272 of the Revised Statutes being in derogation of the common law must be strictly construed and we fail to find anything in its language which would warrant us in holding that upon the perfecting of a supersedeas what has already been done under a judgment or excution should be annulled, and where personal property has already been levied upon that it should be restored to the possession of the defendant in execution.

It follows that the rule must be discharged, and it is so ordered, at the cost of the plaintiffs in error.

Taylor, C. J., Cockrell, Hocker and Whitfield, JJ., concur.

Carter, J., absent by reason of sickness in his family.