FIDELITY & DEPOSIT COMPANY OF MARYLAND, A CORPORATION, PLAINTIFF IN ERROR,
v.
ELLA BROWN, ET AL., DEFENDANTS IN ERROR
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The Florida Supreme Court held that a surety's filing of a plea in a related action, merely acknowledging the existence of a prior judgment without conceding its validity, does not constitute a waiver of the right to appeal that judgment by writ of error. The court denied the motion to dismiss the writ of error.
The court held that such a plea does not constitute a waiver of the right to take a writ of error. A mere recognition of a judgment's existence is not an acknowledgment of its validity or an acquiescence in it, and does not waive the right to challenge errors in the judgment.
“The allegation that the 'judgment is still in force and effect,' is a recognition of the existence of the judgment, but it is not an allegation of its validity or an acquiescence in the judgment, the time for taking a writ of error not having elapsed.”
Establishes the distinction between acknowledging a judgment's existence and conceding its validity or waiving the right to appeal.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe Fidelity & Deposit Company of Maryland, as surety on a sheriff's official bond, obtained a judgment of $7,500 against it on June 25, 1925, based o…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Plea In Bar cases and more on FLexlaw
Per'Curiam.'
— Judgment for $7,500.00 damages was obtained June 25,1925, against the Fidelity and Deposit Company of Maryland, a corporation, as surety on a sheriff’s official bond, upon declarations alleging that G-.
P. Stewart, a deputy sheriff, in attempting to arrest" Roscoe Brown, wrongfully and negligently shot and killed the said Roscoe Brown, a minor. In another action against the same defendant as surety on the official bond of the same G.
P. Stewart, as a special officer under Chapter 8539, Laws of Florida, and as surety on the official bond of the same G.
P. Stewart, as deputy sheriff it is alleged that G.
P. Stewart in attempting to arrest Roscoe Brown wrongfully and negligently shot and killed the said Roscoe Brown, a minor, the defendant, on June 25, 1925, pleaded the judgment obtained against the defendant as surety on the sheriff’s bond alleging that said “judgment is still in force and effect.” On August 20, 1925, the defendant took writ of error to the judgment against it on the sheriff’s bond, and the plaintiffs below now move for a dismissal of the writ of error on the ground that the error complained of, if any, was waived by the plaintiff in error by the filing of the plea in the other action as stated above.
It does not appear that the plea referred to has been sustained; and the plea does not allege that the judgment has been satisfied or that it is valid and binding on the defendant or that the judgment is not subject to a writ of error. The allegation that the “judgment is still in force and effect,” is a recognition of the existence of the judgment, but it is not an allegation of its validity or an acquiescence in the judgment, the time for taking a writ of error not having elapsed. The plea is not inconsistent with the exercise of the right to take writ of error to the judgment and its filing is not a waiver of errors, if any, in the judgment of a waiver of the right to take writ of error as the law provides. See Missouri, K. & T. Ry Co. v. Bagley, 65 Kan. 188, 69 Pac. Rep. 189; Melancon v. Wilson, 107 La. 628, 31 South. Rep. 1029; Ostrander v. Campbell, 3 N.
Y. S. 597; Brewster v. Wooster, 26 N.
Y. S. 912; Elliott v. Champ, 91 Ind. 398.
Motion to dismiss denied.
Whitfield, P. J., and Terrell and Buford, J. J., concur. Brown, C. J., and Ellis, J., concur in the opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Hastings v. Osborne, 131 F.2d 396 (6th Cir. 1942)…ypified by Madden v. Madden, 169 Ky. 367, 183 S.W. 931, L.R.A.1916E, 892. In other cases it has been held that pleading a judgment in bar to another suit admits but the existence of the judgment and not its validity. Fidelity & Deposit Co. v. Brown, 91 Fla. 47, 107 So. 182. No Michigan cases bearing upon the subject have been uncovered, either by the diligence of counsel or our own. Whatever may be the prevailing rule in this respect we are not persuaded that the present appeal comes within its ambit. Th…