T. T. Edgerton, Plaintiff in Error, vs. Frankie K. West et al., Defendants in Error, 38 Fla. 338

Mabry, C. J.: A writ o'f error was sued out in this case from a j udgment at law, and a bond was filed within the time prescribed for it to operate as a statutory supersedeas. A motion is made to vacate the supersedeas on the grounds, in substance, that the bond is not conditioned as required by law, is not sufficient in amount, and there is no justification of the sureties, or approved by the clerk.

From the copy of the bond found in the transcript it appears that plaintiff in error, within thirty days from the rendition of the j udgment, filed a bond with three sureties, conditioned as the statute requires, and was approved by the Clerk of the Circuit Court on the day of its filing. There is no justification of the sureties, before the clerk or any other officer.

In support of the motion a copy of the bond, with no approval thereon, is filed under the certificate of the clerk that it is a true copy of the original, but an affidavit of the clerk is produced, to the effect that he did approve the bond on the date it was filed, as is shown by the copy in the transcript. The copy produced under the certificate mentioned does not show the approval, but it does not show that it was not approved, and the approval omitted in the copy produced. From the showing before us we must conclude that the bond was approved by the clerk on the day it was filed.

It is not insisted that the sureties are not worth the amount of money requisite for sureties, but the claim is that as they did not justify as sureties the bond is not in accordance with law. This view is not correct. The statute authorizes the clerk to approve the bond, and he should require good sureties, but it does not make it mandatory on him to swear the sureties as to the value of their property.

A justification of the sureties may be a protection to the clerk in the event they are in fact insolvent, and the approval of the bond without a justification of the sureties when they are insolvent may render the clerk liable, but the mere fact of the absence of the justification is no ground for vacating a supersedeas. The judgment in the case was rendered on the 8th day of April, 1896, for $1,278.20, besides costs amounting to $25.40. The amount of the supersedeas bond, filed on the 14th of April, 1896, is $1,310.

It is evident that the judgment with the accrued interest thereon up to the date of this motion is larger than the amount mentioned in the bond, and that if the judgment should be now affirmed, the bond would not be sufficient to protect defendants in error. The supersedeas bond provided for in

section 1272 of the Revised Statutes should, in our judgment, be ample to protect the adverse party in the event his judgment is affirmed, and such is the' purpose and spirit' of the statute in al. lowing the supersedeas. Where a cause can not be immediately disposed of in the appellate court, the bond should be in an amount sufficient to cover the interest that may accrue on the judgment before the case can be decided here, and when this is not the case it can not be said the bond is ample to protect the adverse party.

The bond in this case when executed was sufficient in amount to cover the judgment and interest then due, but even now the amount is not sufficient. An additional bond in a sum sufficient to protect defendants in error in the event their judgment be affirmed should be given, and in default thereof the supersedeas should be vacated.

It is, therefore, ordered that the supersedeas in this case shall be and stand vacated unless the plaintiff in error shall within thirty days from this date file with the clerk of this court an additional bond with two or more sufficient obligors in the sum of three hundred and fifty dollars conditioned to pay the amount of the judgment with interest and costs, if the same shall be affirmed in this court.