IN RE CAROL FLORIDA CORP., A FLORIDA CORPORATION
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Carol Florida Corp. sought to recover bond premium costs after successfully defending against lienors' foreclosure suit by transferring liens to security under Florida statute. The court affirmed the lower court's denial of the cost request, holding that the statutory proceeding is non-adversarial and does not generate a judgment supporting cost taxation.
The bond premium cannot be taxed as costs in this statutory proceeding because the proceeding is non-adversarial and does not result in a judgment in the common law sense, and therefore provides no basis for subsequent cost taxation. The voluntary appearance of lienors does not alter the non-adversarial nature of the proceeding.
“Costs, when allowable, are merely an incident to the main adjudication.”
Establishes that costs are subsidiary to the principal judgment and not independently appealable
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Join FLexlaw to unlock all legal intelligenceWestinghouse Electric Supply Company and B. & W. Company filed liens against property owned by Carol Florida Corp. Carol Florida Corp. applied to tran…
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Westinghouse Electric Supply Company, predecessor to Westinghouse Electric Corporation, and B. & W. Company filed claims of lien against property owned by Carol Florida Corp., a Florida corporation. The latter applied for transfer of the liens to security pursuant to section 84.24, Fla. Stat., F.S.A. The court determined that the amount of the bond should be $325,000, and approved the surety bond provided.
Thereafter the lienors brought suit fo foreclose their liens and the Carol Florida Corporation prevailed. An application, in *838the proceeding brought pursuant to section 84.24, Fla.Stat., F.S.A., to tax the bond premium as costs was made by Carol Florida Corp. The court declined to tax the bond premium as costs in that statutory proceeding and the appeal is from that order.
Costs, when allowable, are merely an incident to the main adjudication. State ex rel. Royal Ins. Co. v. Barrs, 87 Fla. 168, 99 So. 668. The only advantage appellant seeks in the instant appeal is to recover costs, and this court will not hear an appeal merely to determine the right to costs. See cases cited in 4 C.J.S. Appeal & Error § 40(f), n. 25. It is well recognized that a judgment for costs only is not appealable. E. g., Gray v. Mann, 47 Fla. 162, 37 So. 161; Cobb v. Santa Rosa County, 47 Fla. 135, 36 So. 172.
This court, however, has considered the notice of appeal as a petition for review of an order taxing costs pursuant to rule 3.16, subd. c, Florida Appellate Rules, 31 F.S.A., inasmuch as it was timely filed within 20 days after the entry of the judgment. See Manganelli v. Covington, Fla. App.1959, 114 So.2d 320.
Upon review, pursuant to the rule, the order refusing to tax the bond premium as a cost is affirmed. The proceeding pursuant to section 84.24, Fla.Stat., F.S.A., is not an adversary action and does not result in a judgment in the usual, common law sense. No process is provided upon which a subsequent order taxing costs could be based.
It is urged that in this instance the holders of the lien voluntarily appeared and participated in the proceedings. We hold that such appearance is not sufficient to change the nature of the proceeding as defined by the statute.
It is noted by this court, however, that this decision does not preclude the taxation of bond premiums of the type here involved ■ as an element of cost in other proceedings. Nor is it competent that we should undertake to rule upon such a question in the consideration of this petition. Such consideration thereof is expressly reserved until and if it shall be presented.
Affirmed.
HORTON, C. J., and CARROLL, CHAS., J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Chatlos v. City OF Hallandale, 220 So. 2d 353 (Fla. 1968)…ovided the petition is filed within 20 days after the entry of said judgment.” . City of Hallandale v. Chatlos, Fla.App. 1968, 211 So. 2d 53. . Manganelli v. Covington, Fla.App.3rd 1959, 114 So. 2d 320; In re Carol Florida Corp., Fla.App.3rd 1960, 118 So. 2d 837; Dade County v. Cross, Fla.App.3rd 1961, 127 So. 2d 141; Horner v. State, Fla. App.3d 1963, 148 So. 2d 553, and Dames v. Dames, Fla.App.3rd 1963, 156 So. 2d 532. . See cases cited in footnote 4. . Compare Jacksonville Terminal Co. v. Blanchard, Fl…
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Craft v. Marcel Clarembeaux, 162 So. 2d 325 (Fla. 2d DCA 1964)…r Rule 3.16(c), Florida Appellate Rules, 31 F.S.A. This conclusion, certainly a reasonable one in light of the language of Rule 3.16(c), has apparently been adopted by our sister court of the Third District. In re Carol Florida Corp., Fla.App. 1960, 118 So. 2d 837. Cf. Horner v. State, Fla.App.1963, 148 So. 2d 553. However, we must decline to follow the decision in the Carol Florida Corp. case. In our view, the applicability of Rule 3.16(c) is limited to those cases involving the taxation of costs by a lower…
Authorities Cited
- The State of Fla. ex rel. Royal Ins. Co. v. Burton Barrs, 87 Fla. 168 (Fla. 1924)
- Manganelli v. Covington, 114 So. 2d 320 (Fla. 3d DCA 1959)
- Cobb v. Cnty. of Santa Rosa, 47 Fla. 135 (Fla. 1904)
- Gray v. Mann, 47 Fla. 162 (Fla. 1904)