DUNES ENTERPRISES, INC., ETC., APPELLANTS,
v.
ANTHONY PAPANDREA AND MORSE AUTO RENTALS, APPELLEES
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In this interlocutory appeal, the court reversed an order denying a stay of execution of judgment, holding that a supersedeas granted to one defendant on appeal operates to stay execution of judgment against all defendants in the action, and that a stay was necessary to preserve the appellate rights of the appealing defendant.
The court held that the supersedeas operates to stay execution of the judgment as to all defendants, not merely the appealing defendant. The court also found that the wording of the supersedeas order, which expressly provided for supersedeas against 'the defendants,' supported staying the judgment as to all defendants.
“The real effect of an appeal with supersedeas is to suspend the power of the court below to make any order tending towards an execution or enforcement of the order or decree appealed from”
Establishes the fundamental principle that supersedeas suspends the trial court's power to enforce a judgment during appeal
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Join FLexlaw to unlock all legal intelligenceA personal injury action arose from an automobile accident with judgment rendered against three defendants: the driver, his employer, and the owner-le…
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This is an interlocutory appeal from an order denying a motion to stay execution of judgment against one (non-appealing) defendant, when another such defendant had appealed and superseded the judgment.
The question presented by the appeal is whether in a personal injury action arising *581out of an automobile accident in which judgment is rendered in favor of a plaintiff against the driver of the car, his employer and the owner-lessor, where an appeal is taken with supersedeas by the defendant owner-lessor, such supersedeas stays execution of the judgment against a defendant who did not appeal, or stays execution only as to the one judgment defendant who appealed. A further question involved is whether the form of the order was such as to make the supersedeas operate to stay the judgment as to all defendants.
The rule established in this state that supersedeas of a judgment operates to stay the execution thereof would appear sufficiently broad to preclude enforcement of the pending judgment during appeal. Pennsylvania Threshermen & Farmers’ Mutual Casualty Ins. Co. v. Barrett, Fla.App.1965, 174 So.2d 417, 418; Lockleer v. City of West Palm Beach, Fla.1951, 50 So.2d 348, 349; Carr v. Marion Mortgage Co., 99 Fla. 807, 126 So. 776, 777; McKinnon-Young Co. v. Stockton, 53 Fla. 734, 44 So. 237, 246; Bacon v. Green, 36 Fla. 313, 18 So. 866, 869. In McKinnon-Young Co. v. Stockton, the court said: “The real effect of an appeal with supersedeas is to suspend the power of the court below to make any order tending towards an execution or enforcement of the order or decree appealed from * *
In addition to that general proposition there are two reasons which call for reversal of the order appealed from. One is that a stay of execution against the lessee Dunes, at the time applied for, was necessary for preservation of the rights of Morse who appealed and superseded the judgment. This is so because there was a judgment over, in favor of Dunes, against the appellant Morse for indemnification, based on the contract of Morse to furnish insurance for the lessee Dunes (the insurer having become insolvent). In that circumstance, if Dunes were required to pay the judgment pending the appeal by Morse, the latter would be obligated to Dunes for indemnity even though Morse should succeed on its appeal.
A second additional basis for reversal is that the supersedeas order, by expressly providing for supersedeas of the judgment against “the defendants',” by its own wording stayed the judgment as to the several defendants.
For the reasons stated the order appealed from is reversed.
Reversed.
(concurring specially).
My concurrence is based upon the language of the order and, as is pointed out in the opinion, its obvious applicability to the situation.
TILLMAN PEARSON, Judge
(concurring specially).
My concurrence is based upon the language of the order and, as is pointed out in the opinion, its obvious applicability to the situation.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Morse Auto Rentals, Inc. v. Dunes Enters., Inc., 198 So. 2d 652 (Fla. 3d DCA 1967)…SWANN, Judge. This litigation has been the source of two prior appeals in this court. See Morse Auto Rentals v. Papandrea, Fla.App.1965, 180 So. 2d 351; Dunes Enterprises, Inc. v. Papandrea, Fla.App.1965, 179 So. 2d 580. The focal point of the present appeal is the right of an indemnitee to recover attorney’s fees from the indemnitor. Morse leased a car to Dunes under a lease contract, whereby Morse agreed to provide, inter alia, certain liability insurance for Du…
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Lord v. First Bank & Tr. OF Palm Beach Cnty., 382 So. 2d 837 (Fla. 4th DCA 1980)….Jur.2d, Appeal and Error, § 325, p. 809. The appellant here has not joined in any supersedeas bond and he is appealing severally. Accordingly, I agree that the trial court’s order should be affirmed. . But see Dunes Enterprises, Inc. v. Papandrea, 179 So. 2d 580 (Fla. 3d DCA 1965).…
Authorities Cited
- Bacon v. Green, 36 Fla. 313 (Fla. 1895)
- Carr v. Marion Mortg. Co., 99 Fla. 807 (Fla. 1930)
- The McKinnon-Young Co. v. Page, 53 Fla. 734 (Fla. 1907)
- Pa. Threshermen & Farmers' Mut. Cas. Ins. Co. v. Barrett, 174 So. 2d 417 (Fla. 3d DCA 1965)