Opinion
No. 72-184.
March 21, 1972.
Petition for review from the Circuit Court, Dade County, Arthur E. Huttoe, J.
Robert J. Lewison, Miami, for appellant.
Sepler Sussman, Hialeah, Phillip J. Goldstein, Miami, for appellees.
Before BARKDULL, C.J., and CHARLES CARROLL and HENDRY, JJ.
This matter is before us on a petition filed by the appellant for review of a supersedeas order, as provided for by Rule 5.10 FAR, 32 F.S.A.
A brief reference to the history of the proceedings appears indicated. A judgment was entered against the petitioner, a lessee, determining that a lease had been breached and that the lessors were entitled to possession of certain premises, upon which the lessee is operating a restaurant. An appeal by the lessee from that judgment is pending, and the judgment was superseded.
Thereafter, the trial court held a hearing on a motion of the plaintiffs for allowance of attorney's fees and for costs, being matters in relation to the judgment which had been superseded, and as to which the right of the plaintiffs were based on and in furtherance of the appealed judgment. Acting thereon the trial court entered a judgment against the lessee defendant for $2,250.00 attorney fees and $252.50 costs, for a total of $2,502.50. In such order issuance of execution was authorized unless the defendant, within six days, should file another supersedeas bond, of $2,750.
In Pennsylvania Thresh. F. Mut. Cas. Ins. Co. v. Barrett, Fla.App. 1965, 174 So.2d 417, a collateral action was brought, grounded on a matter which had been established by a judgment entered in another cause involving the parties. The latter judgment had been appealed and superseded. There, following a similar pronouncement by the Supreme Court in Bacon v. Green, 36 Fla. 313, 18 So. 866, this court said:
"* * * A supersedeas has the effect to suspend all further proceedings in relation to a judgment superseded, but it does not, like a reversal, annul it. The supersedeas, being preventive in nature, does not set aside what the trial court has adjudicated, but stays further proceeding in relation to the judgment until the appellate court acts thereon. Bacon v. Green, 1894, 36 Fla. 313, 18 So. 866. The act of the trial judge in the court below involved a proceeding in relation to the judgment superseded and should have been stayed until the disposition of the appeal had become final. * * *"
On consideration of the present petition, we hold that the subsequent proceedings and judgment based on the final judgment which is pending here on appeal, and which has been superseded, were not authorized. The effect of the supersedeas was to "suspend all further proceedings in relation to the judgment superseded." It follows that there is no necessity for the petitioner-defendant to furnish an additional supersedeas bond, and that no execution may be issued on the judgment for attorney fees and costs, the predicate for entry of which was the superseded judgment.
Accordingly, provision of the subsequent judgment for execution thereon shall be inoperative pending this appeal.
It is so ordered.