Opinion
No. 62-75.
June 19, 1962.
Appeal from the Circuit Court for Dade County, Lucien C. Proby, Jr., J.
Melvin I. Muroff, Miami Beach, for appellant.
Charles C. Hoffman, So. Miami, for appellee.
Before PEARSON, TILLMAN, C.J., and CARROLL and HENDRY, JJ.
We have been presented with a motion by appellant to strike a condition in a supersedeas bond. The appeal is from a final decree for plaintiff in a chattel mortgage foreclosure. The appellant-movant was not the mortgagor but contests the lien of the mortgage.
The order granting supersedeas and fixing terms and conditions of the bond provides that the bond should be "* * * conditioned to pay all costs and damages, including attorney's fee." A trial court is without authority to require as a condition of a supersedeas bond that attorney's fees be paid by the appellant as a part of the expense of an appeal from a final decree. Bernstein v. Bernstein, Fla. 1949, 43 So.2d 356; Larson v. Higginbotham, Fla. 1953, 66 So.2d 40.
It is our view that this rule has not been changed by Ritter v. Bentley, Fla. 1955, 78 So.2d 573, inasmuch as the holding in that case is confined by the opinion to an action by a plaintiff upon a defaulted bond.
Accordingly, the motion is granted and the condition that the appellant pay attorney's fee is stricken from the order and the bond.
It is so ordered.