E. D. VESTEL, J. M. COOK AND E. G. HAUSELT, PLAINTIFFS IN ERROR,
v.
E. P. EAGERTON, DEFENDANT IN ERROR
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A supersedeas bond dispute arising from a quo warranto case involving the office of Chief of Police of Orlando. The court reversed a judgment that included attorney's fees in the damages award, holding that only lost salary and costs—not attorney's fees—are recoverable under a supersedeas bond conditioned to pay 'all damages and costs.'
Lost salary and costs paid in the underlying suit are proper damages recoverable under the supersedeas bond, but attorney's fees are not recoverable under the bond's terms.
“The bond was conditioned to pay "all damages and costs in the sa,id cause" if the judgment in the quo warranto should be affirmed by the Supreme Court.”
Establishes the express terms limiting recoverable damages to those specified in the bond.
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Join FLexlaw to unlock all legal intelligenceVestel lost a quo warranto proceeding and was ousted from his position as Chief of Police of Orlando, with the office awarded to Eagerton. Vestel appe…
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Koonce, Circuit Judge.
Tbe defendant in error sued tbe plaintiffs in error in tbe Circuit Court of Orange County upon tbeir supersedeas bond given in an appeal from a certain quo warranto proceedings in Orange County wherein a judgment of ouster had been rendered against the plaintiff in error Vestel and awarding the office of Chief of Police of the City of Orlando to the defendant in error Eagerton.
There are several assignments of error but they may all be disposed of in the consideration of one question, that is what may be included in the term ‘ ‘ damages ’ ’ used in the supersedeas bond. The verdict of the jury and judgment of the court was for the sum of six hundred and twenty-six dollars and twenty cents. The undisputed evidence shows that the amount was arrived at by allowing the sum of Four hundred and fifty dollars as two months’ salary which the defendant in error Eagerton was prevented collecting by reason of the appeal, and which the plaintiff in error Vestel received, also the sum of nine dollars and twenty cents costs paid by him in the suit. The remainder was allowed as attorney’s fees.
The bond was conditioned to pay “all damages and costs in the sa,id cause” if the judgment in the quo warranto should be affirmed by the Supreme Court. The appeal being dismissed the judgment was affirmed, thereby declaring that the defendant in error, Eagerton, was entitled to the office and the emoluments thereof. Being deprived of such salary for two months by reason of the supersedeas, it logically follows that this was proper damage to be awarded. It was not proper, however, to award any sum for attorney’s fees.
Inasmuch as the evidence was uncontradicted as to the amount of the salary and the costs expended, the judgment is reversed for the entry of a proper judgment for the amount of the salary, being four hundred and fifty dollars, and costs expended in the suit, being nine dollars and twenty cents, together with the costs in the present suit. Per Curiam.- — The record in this cause having been considered by this court, and the foregoing opinion prepared under Chapter 7837, Acts of 1919, adopted by the court as its opinion, it is considered, ordered and adjudged by the Court that the decree of the Circuit Court in this cause should be, and the same is hereby, reversed for the entry of a proper judgment for the amount of the salary, being four hundred and fifty dollars, and costs expended in the suit, being nine dollars and twenty cents, together with the costs in the present suit.
Brown, C. J., and Whitfield, Ellis, Terrell and Buford, J. J., concur.
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Lawson v. Cnty. Bd. of Pub. Instruction, 114 Fla. 153 (Fla. 1934)…the cause and of the matter involved in the appellate proceedings. Attorney fees may not ordinarily be recovered as costs and damages in actions on supersedeas bonds unless properly so made a condition of the bonds. See Vestel, et al., v. Eagerton, 92 Fla. 215, 109 So. 456. The appeal in this case is from an interlocutory order [*156] and the matter involved in the appeal and the rights of the appellee that will be adversely affected by delay following an appeal and supersedeas, are of such a nature that…
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Bernstein v. Bernstein, 43 So.2d 356 (Fla. 1949)…9.13(3), F.S. 1941, F.S.A. The tendency of the courts is to construe appeal bonds and other judicial words as they should have been and to consider as surplusage those provisions included which were improperly required. In Vestal v. Eagerton, 1926, 92 Fla. 215, 109 So. 450, this Supreme Court specifically stated that attorneys' fees were not a proper element of damages and costs. If an illegal condition is inserted by a Circuit Court in a supersedeas bond, the condition will be ignored as superfluous. Th…
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Gore v. News-Journal Corp., 146 Fla. 552 (Fla. 1941)…ounsel for relator in attending the oral argument before the Supreme Court; and' (4) counsel fees incurred by relator for services of counsel during the appeal ? An action on a supersedeas bond was involved in the case [*557] of Vestel v. Eagerton, 92 Fla. 215, 109 So. 456. The bond was posted in a quo warranto proceedings over the office of chief of police in the City of Orlando. The bond had the same conditions as involved in the case at bar. The appeal was dismissed in this court and Eagerton was there…