LEONORA T. SIMMS, J. W. DUKES AND L. WALTER DUKES APPELLANTS,
v.
THE CITY OF TAMPA, CHARLES WRIGHT AND THE JETTON-DEKLE LUMBER COMPANY, A CORPORATION, APPELLEES
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The Florida Supreme Court affirmed the denial of a restitution petition filed after a judgment reversal, holding that restitution cannot be compelled from third-party bona fide purchasers who are strangers to the record, particularly when sought summarily by motion or petition.
Restitution cannot be compelled from third-party strangers to the record who were bona fide purchasers at a sale under a subsequently reversed judgment, and their rights are unaffected by the reversal. This principle applies particularly when restitution is sought summarily by motion, rule, or petition.
“It is well settled that restitution, on reversal of a judgment, can be compelled only from parties to the record, or from their beneficial assignees, or, in case of the death of the execution plaintiff, from his executor or administrator.”
Establishes the fundamental rule limiting who may be compelled to provide restitution after judgment reversal
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Join FLexlaw to unlock all legal intelligenceA judgment was rendered and subsequently reversed on appeal. Charles Wright purchased property at a master's sale conducted under the reversed decree.…
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Taylor, J.
(after stating the facts) : There was no error in the order made and questioned here. It is well settled that restitution, on reversal of a judgment, can be compelled only from parties to the record, or from their beneficial assignees, or, in case of the death of the execution plaintiff, from his executor or administrator. Restitution cannot be compelled from third persons, strangers to the record, who were hona fide purchasers at a sale under process dependent upon a judgment subsequently reversed, or who acquired Iona fide collateral rights there under, and tlieir rights are in no way affected by the subsequent reversal of the judgment. Particularly should restitution be denied as against a stranger to the record when sought in a summary manner by motion, rule or petition as was attempted in this case. Rex & Regina v. Leaver, 2 Salk. 587; Bank of United States v. Bank of Washington, 6 Pet. (U. S.) 8; Stroud v. Casey, 25 Tex. 740; 18 Ency. Pl. & Pr., 880; Griggs v. Detroit & Milwaukee Ry. Co., 10 Mich. 117; Livingston v. Freeland, 3 Barb. Chy. 510; Florida Central R. R. Co. v. Bisbee, 18 Fla. 60; Horton v. Wilde, 8 Gray (Mass.) 425; Hanschild v. Stafford, 27 Iowa 301; Field v. Maghee, 5 Paige Chy. 539; Garvin v. Watkins, 29 Fla. 151, 10 South. Rep. 818.
Charles Wright, the purchaser at the master’s sale under the decree subsequently reversed, was a stranger to the record in the cause in which such decree was rendered, and he, for aught that is shown to the contrary in the record. before the court, was a bona -fide purchaser of the property sold under said decree. There was no supersedeas of such decree on the former appeal therefrom. His grantee, the Jetton-Dekle Lumber Company, was also a stranger to such record. Under these circumstances the court below made the proper order in denying and dismissing the petition for restitution. The order or decree of the court below appealed-from herein is hereby affirmed at the costs of the appellants. ,
Hocker and Parkhill, JJ., concur. Cockrell and Whitfield, JJ., concur in the opinion.
Shackleford, C. J., disqualified, took no part.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Sundie v. Haren, 253 So. 2d 857 (Fla. 1971)…te, 77 Fla. 571, 82 So. 136 (1919). . 45 Fla. 468, 34 So. 255 (1903). . Accord, Bridier v. Burns, Fla., 4 So. 2d 853 (1941). . Martin County v. Hansen, 111 Fla. 40, 149 So. 616 (1933); Florida Central Railroad Co. v. Bisbee, 18 Fla. 60 (1881). . 52 Fla. 641, 42 So. 884 (1906). . Simms v. City of Tampa, 52 Fla. 641, 643, 42 So. 884, 885 (1906).…1 / 2
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Lindsley v. Phare, 115 Fla. 454 (Fla. 1934)…or money had and received. If, however, the money, after being paid to plaintiff, is by him paid to a third person, it cannot be recovered from such person, though he was one of the plaintiff’s attorneys.” And, as we said in Simms v. City of Tampa, 52 Fla. 641, 42 Sou. 884: ■ “There was no error in the order made and questioned here. It is well settled that restitution, on reversal of a judgment, can be compelled only from parties' to the record, or from their beneficial assigns, or in case of the death…
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Abe Baum v. Ardis Heiman, 528 So. 2d 63 (Fla. 3d DCA 1988)…5 (Fla. 3d DCA [*64] 1974); Mann v. Thompson, 118 So. 2d 112 (Fla. 1st DCA 1960). However, such restitution is appropriate against the party who prevailed under the erroneous judgment or decree, not third parties, as is Baum. Simms v. City of Tampa, 52 Fla. 641, 42 So. 884, 885 (1906). As the supreme court held in Sundie v. Haren, 253 So. 2d 857, 859 (Fla.1971): “[T]he person required to make restitution [must have been] connected with the litigation. It is settled law that reversal of the decree on appeal…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sallie J. Garvin v. Watkins, 29 Fla. 151 (Fla. 1892)
- Rumeli v. City of Tampa, 48 Fla. 112 (Fla. 1904)
- The Fla. Cent. R.R. Co. v. Bisbee, 18 Fla. 60 (Fla. 1872)