WHEELER & WILSON MANUFACTURING COMPANY, PLAINTIFF IN ERROR,

v.

E. E. JOHNS, DEFENDANT IN ERROR

Taylor, J.:

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obliging an original plaintiff to give bond to secure future costs before he could obtain a writ of error has been repealed, and all that is now necessary for an original plaintiff to procure such writ is to pay all costs that have accrued in the suit up to the time when he prays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 order, to have that effect, he must give bond properly-conditioned. Sections 1270-1272 Rev. Stat. 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 in the<prosecution of said writ of error, then this obligation to be void,” etc. If the conditions of this bond had been proper and sufficient fully to protect the defendant in error in all of his rights, it is necessary, and we do not now decide, whether the mere absence of a prior order from the Circuit Judge fixing and prescribing such conditions, would be any cause for overturning the bond. But we do not think the conditions of this bond are sufficient.- By the provisions of sections 1724 and 1725 Rev. Stat. the defendant, upon the rendition of the judgment in his favor, acquired the choice of sueing out either a writ of possession for the recovery of the specific property, or an execution against the plaintiff and the sureties on its replevin bond for the adjudged value of the property and costs. The judgment having been superseded by writ of error before any exercise of this election of writs by the defendant, the defendant’s right to such election still continues, but in abeyance, during the pendency of the cause in the appellate court, and, in the event of an affirmance here of the judgment below, he will then have the right to elect which ever of the two writs he pleases to enforce the judgment. This being true, it follows that the bond given for the purpose of superseding such a judgment should 'be conditioned in the alternative, so as to obligate the parties giving it either to deliver possession of the specific property, with damages for its detention and costs, o’’ to pay the amount adjudged as its value, together with interest and costs, as the obligee in the bond may elect. The bond given in this case, though quite comprehensive in the language of its condition, does not obligate the parties giving it to the payment of any damage for the detention of the property pending the writ of error in the event of an affirmance and an election on the part of the defendant in error to have a return of the property; neither does it obligate them to pay interest on the adjudged value of the property, in the event the defendant in error shall elect to demand such adjudged value, instead of the property itself. The motion to vacate the supersedeas is, therefore, well founded; but, in view of the fact that the court below omitted to prescribe the conditions of the bond, the plaintiff in error will be allowed thirty days from the filing of this opinion in which to file an amended bond with two good and sufficient sureties, to be approved by the Clerk of the Circuit Court, in the sum already prescribed by the Circuit Judge, and conditioned in conformity with this opinion; otherwise the motion of the defendant in error to vacate the supersedeas will be granted. Chapter 4232, Act approved June 3d, 1893.