Leonora T. Simms, J. W. Dukes and L. Walter Dukes Appellants, v. The City of Tampa, Charles Wright and the Jetton-Dekle Lumber Company, a corporation, Appellees, 52 Fla. 641

Taylor, J. (after stating the facts) : There was no error in the order made and questioned here. It is well settled that restitution, on reversal of a judgment, can be compelled only from parties to the record, or from their beneficial assignees, or, in case of the death of the execution plaintiff, from his executor or administrator.

Restitution cannot be compelled from third persons, strangers to the record, who were hona fide purchasers at a sale under process dependent upon a judgment subsequently reversed, or who acquired Iona fide collateral rights thereunder, and tlieir rights are in no way affected by the subsequent reversal of the judgment. Particularly should restitution be denied as against a stranger to the record when sought in a

summary manner by motion, rule or petition as was attempted in this case. Rex & Regina v. Leaver, 2 Salk. 587; Bank of United States v. Bank of Washington, 6 Pet. (U. S.) 8; Stroud v. Casey, 25 Tex. 740; 18 Ency. Pl. & Pr., 880; Griggs v. Detroit & Milwaukee Ry. Co., 10 Mich. 117; Livingston v. Freeland, 3 Barb. Chy. 510; Florida Central R. R. Co. v. Bisbee, 18 Fla. 60; Horton v. Wilde, 8 Gray (Mass.) 425; Hanschild v. Stafford, 27 Iowa 301; Field v. Maghee, 5 Paige Chy. 539; Garvin v. Watkins, 29 Fla. 151, 10 South. Rep. 818.

Charles Wright, the purchaser at the master’s sale under the decree subsequently reversed, was a stranger to the record in the cause in which such decree was rendered, and he, for aught that is shown to the contrary in the record. before the court, was a bona -fide purchaser of the property sold under said decree. There was no supersedeas of such decree on the former appeal therefrom. His grantee, the Jetton-Dekle Lumber Company, was also a stranger to such record. Under these circumstances the court below made the proper order in denying and dismissing the petition for restitution.

The order or decree of the court below appealed- from herein is hereby affirmed at the costs of the appellants. , Hocker and Parkhill, JJ., concur. Cockrell and Whitfield, JJ., concur in the opinion. Shackleford, C. J., disqualified, took no part.