Opinion
February 6, 1951.
Appeal from the Circuit Court for Palm Beach County, C.E. Chillingworth, J.
Paty, Warwick Paul, West Palm Beach, for petitioner.
Jordan Johnson, West Palm Beach, for Richard M. Allshire and C. Robert Burns, West Palm Beach, for City of West Palm Beach, respondents.
The City of West Palm Beach filed its amended bill of complaint in the Circuit Court alleging that Trueman P. Matthews, its Chief of Police, died December 8, 1950; that petitioner William D. Lockleer was at that time and is now, acting as Chief of Police of said City, and that under the law he is entitled to continue to do so; that respondent Richard M. Allshire also claims title to said office. The prayer of the bill of complaint is for declaratory decree to determine whether Lockleer or Allshire is entitled to act as Chief of Police or whether an election should be held to fill said vacancy.
Lockleer and Allshire answered the bill, both claiming to be senior officer in the Police Department by virtue of which they claim title to the office of Chief of Police of West Palm Beach. On the issues so made the Circuit Court entered a final decree holding that Allshire was Chief of Police and should be recognized as such. Petitioner forthwith entered his appeal challenging the correctness of the final decree and moved the Court for an order fixing the terms and conditions of supersedeas bond. The Circuit Court granted the motion in part but denied it as to paragraphs 7, 8 and 11, being that part holding Richard M. Allshire to be the Chief of Police and requiring that he be recognized as such.
We are confronted with a motion of appellant under Rule 35 of the Rules of this Court, 30 F.S.A., praying that the appeal operate as a supersedeas and stay all proceedings in the cause pending the determination of the appeal, conditioned upon Lockleer posting a good and sufficient bond as the Court may direct.
An historical inspection of the controlling law reveals that supersedeas pending the disposition of a cause on appeal is a matter of right when the prerequisites to granting are performed and that its effect is to stay all proceedings in the court below. Section 4621, Compiled General Laws of Florida 1927, Section 59.13, Florida Statutes 1941, as amended by Chapter 22854, Acts of 1945, F.S.A. The very purpose of Rule 35 was to nullify the cumbersome practice of requiring counsel to procure a transcript of the record on appeal and present it to this Court or a Justice thereof, and secure his endorsement as a prerequisite to superseding the judgment or decree appealed from.
When the appellant moves for stay or supersedeas under Rule 35(a) the Circuit Court has no discretion to limit the appeal to any one phase or different phases of the order appealed from. He may exercise his discretion in fixing the amount and condition of the bond but when made and posted it supersedes the decree appealed from in toto. Rule 35(d) points out the elements to guide the Court in fixing the bond and Rule 35(e) affords the appellant his remedy when the bond is "arbitrary or unreasonable or such as is for any other reason not proper". The Circuit Court should take care that this and other provisions of Rule 35 be strictly observed in order that litigants be saved the burden of coming to this Court to perfect their appeals.
In this holding no injunction is involved, neither has the law governing supersedeas from injunction orders been considered or overlooked. That phase of the question is covered in Sections 67.04 and 67.05, Florida Statutes 1941, F.S.A., is not before us and we express no opinion as to its operation at this time.
The motion of appellant should have been granted. It is accordingly referred to the Circuit Court with directions to grant and fix the terms and conditions of the supersedeas bond as pointed out in this opinion. It is further ordered that the parties be restored to their original status, that the cause be set for final disposition on the merits February 19, 1951, and that the record and all briefs be lodged in this Court on or before that date.
It is so ordered.
SEBRING, C.J., and CHAPMAN, ADAMS and HOBSON, JJ., concur.