LEESBURG STATE BANK, NOW KNOWN AS LEESBURG STATE BANK & TRUST COMPANY, A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF FLORIDA, AS TRUSTEE FOR R. J. TULLER AND CELIA E. TULLER, HIS WIFE, AND ROY J. TULLER AND CELIA E. TULLER, HIS WIFE, PLAINTIFFS IN ERROR,
v.
ROGER B. LYLE AND JOHN D. CLARK, AS ASSIGNEE OF THE JUDGMENT ENTERED IN FAVOR OF ROGER B. LYLE, DEFENDANTS IN ERROR
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The Florida Supreme Court dismissed a writ of error challenging a circuit judge's order denying a motion to stay execution on grounds that the judge was disqualified. The Court held that the motion to stay did not attack the regularity or legality of the execution itself and therefore was not properly brought by writ of error.
The writ of error must be dismissed because the motion to stay execution did not attack the regularity or legality of the execution itself and therefore did not fall within the statutory provisions for stays under Sections 2828 and 2829 Rev. Gen. Stats. If the order were reviewable at all, it should have been brought by appeal, not writ of error.
“The motion did not in any way attack the regularity or the legality of the execution and, therefore, did not come within the statutory provisions of Sections 2828 and 2829 Rev. Gen. Stats., 4515, 4516 Comp. Gen. Laws.”
Establishes that the motion to stay fell outside the statutory framework for stays of execution because it did not challenge the legality or regularity of the execution itself.
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Join FLexlaw to unlock all legal intelligenceA suit in chancery was pending in the Circuit Court of Lake County. During pendency, the resident Circuit Judge certified his disqualification. A fina…
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A suit in chancery was pending in the Circuit Court of the'Sixteenth Judicial Circuit in and for Lake County. During the pendency of the suit the resident Circuit Judge certified his disqualification. Thereafter, a final decree was entered.
Appeal was taken to this Court; the decree was affirmed and, thereafter, execution issued, as ordered in the decree. Thereupon, a motion was made in that cause to stay the execution until further proceedings were had in connection with the matters involved in the original suit. The motion did not in any way attack the regularity or the legality of the execution and, therefore, did not come within the statutory provisions of Sections 2828 and 2829 Rev. Gen. Stats., 4515, 4516 Comp. Gen. Laws. The motion *1522as filed appears not to have constituted an independent procedure as is contemplated by the sections of the statutes above referred to, but was merely a step in the cause and the allegations thereof address themselves to the conscience and discretion of the Court.
The motion, together with answer thereto, was heard and considered by the Circuit Judge who had heretofore certified his disqualification in- the cause. The judge denied the motion for stay of execution. Writ of error was sued out to this Court. The contention sought to be made here is that the order so made by the Circuit Judge was void because of his disqualification in the cause.
It appears to the Court that if this order of the Circuit Judge was reviewable it should have been brought here by appeal and not by writ of error, as it does not come within the statutory provisions for the stay of execution because of illegality or irregularity.
For the reasons stated, the writ of error is dismissed.
Whitfield, P. J., and Strum and Buford, J. J., concur.
Terrell, C. J., and Ellis and Brown, J. J., concur in the opinion and judgment.