George W. Saxon & Co., Appellants, vs. E. W. Gamble et al., Appellees, 23 Fla. 408

The Chief-Justice delivered the opinion of the court ? On the 28th day of May, 1887, a final decree was rendered in this case in the Circuit Court for Leon county, On the 27th day of June, 1887, the judge of the court, ora motion of defendants, made an order setting aside that decree. The plaintiff took an appeal from this order July 5th, 1887, and on application to the Chief-Justice obtained an order of supersedeas.

Thereupon the defendants entered a motion in this court for the discharge of the super' sedeas, the first ground of which is that the supersedeas de" lays the hearing of the cause, thereby working inj ustice to-the defendants. It is sufficient to say as to this, that the; record shows there has already been a final hearing, and a resulting final decree. Whether the- hearing was had under circumstances to give validity to the decree is not for us to determine on this motion, or whether in fact there will be further hearing, depends on the result of the appeal from the order on which the supersedeas was granted.

If that appeal should be sustained there can be no further hearing, unless the decree itself is reversed on appeal. The second ground of the motion is, that the order is not such an order as to justify a supersedeas. Here we have a final decree and a receiver appointed to execute it. The appeal is from an order vacating the enrollment of this decree and restoring the case to its status before the decree was .given. It is not necessary or proper for a Justice, on application for supersedeas to consider the merits of the appeal, and therefore we do not consider whether the judge could legally make such an order.

Then was the order one to justify a supersedeas? The counsel insists that the rule is that a supersedeas will not be granted unless some affirm" ative act is to be done, to prevent the doing of which the supersedeas is awarded'. That is a rule which, in our judgment, is not violated by the supersedeas in this case. The affirmative act to be done is to arrest the execution of the decree by the receiver, to our minds the same sort of affirmative act that an order arresting a Sheriff in executing a writ of fi.fa. issued on a final judgment, and most certainly such an order would be subject to a supersedeas.

We think, therefore, that the order in this case was one on which supersedeas could legally be made to operate. The third ground of the motion is, that the judge who granted the order had refused to grant a supersedeas. There is nothing in the record to that effect, but if there was such refusal, we do not think that would prevent a Justice of this court from granting a supersedeas on proper original application therefor. The motion is denied.