64 L. R. A. 333, 86 Am. St. Rep. 143, ex- | nicipality elected not to be controlled by the presses what we conceive to be the true rule Code laws. If any existing municipality which should control in the construction of failed to do this, it became subject to the section 3406, Code 1906. The Constitution of Code laws. Nothing in this record shows the state of Alabama required that "each that the town of Magnolia declined to come law should embrace but one subject which under the Code chapter, and this court will shall be described in the title." The re- presume, in the absence of such showing, quirements of the Alabama Constitution are that the town is under the general law of practically the same as is required in sec- the state. tion 3406 of the Code of 1906 as to municipal ordinances, and the court said: "The object of this provision of the Constitution was to prevent surprise and fraud, in pass ing laws under misleading titles. It should not, therefore, be construed so as to defeat, by too technical an application, legislation not clearly within the evil aimed at. If the title of an act is single, and directs the mind to the subject of the law in a way calculated to direct the attention truly to the matter which is proposed to be legislated upon, the object of the provision is satisfied. In such case the generality of a title, not defining the particulars of the proposed legislation, would be more apt to excite general attention than otherwise, since the general words would give warning that everything within their limits might be affected, and thus draw the attention of the whole body of legislators, while narrower words would only interest those concerned with the [5] Again, since the adoption of the Code of 1906, section 3329 of the Code, which by virtue of section 3441 is made applicable to all municipalities, gives the power "to adopt ordinances prohibiting within the corporate limits the commission of any act which amounts to a misdemeanor under the laws of the state." This was not a part of the Code laws under section 2938, Code 1892, which is the section corresponding to section 3329, Code 1906, but was first placed in the Code of 1906, though first adopted as the law of the state by chapter 75, Acts Sp. Sess. 1898. It follows, from the above, that this case is affirmed. No. 19,040. (129 La. 484) matters specially named. It is therefore WADKINS v. PRODUCERS' OIL CO. et al. held that the generality of the title is no objection, if it may comprehend the particulars of the body of the act, and that the act must be upheld if the subject may be comprehended in the title." (Syllabus by the Court.) 1. APPEAL AND ERROR (§ 937*) - PRESUMPTIONS-PROCEEDINGS FOR TAKING APPEAL. Where a defendant has been condemned, by one judgment, to pay a specific sum of money and to surrender revenue bearing property, and the trial judge has made an order granting an lump sum as the amount of the bond for each, appeal, suspensive and devolutive, and fixing a the amount of the suspensive appeal bond being largely in excess of that required by law for such appeal from the moneyed part of the judgof appeal, as appearing upon the minutes, and ment, this court will not go behind the order the fact that the bond as filed was regarded by the judge and the appellant as sufficient for all purposes, and impute to them the intention of of the judgment a proportion of the amount for attributing to the appeal from the moneyed part which the bond was given, insufficient, under the law, to sustain such appeal. It will be presumed in such case that the judge, acting with the amount of the bond for an appeal from a due regard to the fact that the law determines moneyed judgment, and imposes upon him the duty of fixing the amount of the bond for an appeal from a judgment decreeing the delivery and to fix the amount of the bond for the purof property, intended to comply with the law poses of the appeal from the judgment, quoad the property, as the excess, within the total amount specified in the order of appeal, over the amount required by law for the purposes of the judgment, quoad the money. [3, 4] But it is further argued that section 3410, Code of 1906, only applies to municipalities operating under the Code chapter on municipalities, and that the record in this case does not show that the town of Magnolia is operating under the Code chapter. The answer to this is twofold. In the first place, if it be conceded that this court will not take judicial notice of the character of charter under which a municipality in this state is operating, as to which we say nothing, the court does take judicial notice of the public statutes of the state. When the Code of 1892 was adopted and became the law of the state, the town of Magnolia was an incorporated town. By section 3035 of the Code of 1892 it was provided that, from and after the date the chapter on municipalities became operative, every municipality should exercise the powers conferred on municipalities in accordance with the Code provisions, but left any existing municipality the right to decline to be governed by the Code, provided it signified its purpose to continue to operate under its old charter by a resolution of its corporate authorities, entered of record and certified to the Secretary of State within 12 months after the law became operative, that such existing mu- | 937.*] [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3788-3794; Dec. Dig. § 2. APPEAL AND ERROR (8 441*)-EFFECT OF ed, it had been admitted that defendants PROCEEDINGS TO TRANSFER CAUSE-JURIS- had obtained from the land up to said date DICTION OF TRIAL COURT-CERTIORARI. Where, in an appealable case, the trial 501,640.11 barrels of oil, which they had court, in the exercise of unquestionable jurisdiction, makes an order granting an appeal from a judgment rendered by it and fixing the amount of the appeal bond, and the appeal is perfected in accordance with such order, its (the court's) control of the case is lost, and, being wholly without jurisdiction thereafter to dismiss the appeal, on the ground that it had fixed the amount of the bond at too low a figure, a proceeding in this court by certiorari to review its action in dismissing a rule taken for that purpose is unauthorizel, and cannot be sustained. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 441.*] 3. APPEAL AND ERROR (§§ 395, 452*)—DISMISSAL-Grounds. Where all the requirements for a devolutive appeal have been complied with, such appeal will be maintained, though the suspensive appeal in the case may be dismissed. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. 88 2064-2070; Dec. Dig. §§ 395, 452.*] 4. APPEAL AND ERROR (§ 382*)-PROCEEDINGS TO TRANSFER CAUSE-BOND-EFFECT OF IN SUFFICIENCY. Where, in a case in which the trial court is authorized and required to fix the amount of the bond for suspensive appeal, it does fix it, and the appeal is thereafter perfected, the appellant cannot be held to lose his appeal because the amount so fixed is, or may be, less than it should be, although the appellee should be allowed a remedy, perhaps, by way of a proceeding to compel an increase in the amount of the bond. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 2036-2041; Dec. Dig. § 382.*] Action by W. H. Wadkins, tutor, against the Producers' Oil Company and others. Application by plaintiff for a writ of certiorari. Application rejected, and proceeding dismissed. Thigpen & Herold, for relator. A. L. Beaty, Frank J. Looney, and Hampden Story, for Producers' Oil Co. Herndon & Herndon, for Atlanta-Shreveport Gas & Oil Co. Statement of the Case. sold for $206,640.24, and that they had expended $33,983.95, the admission as to the amount last-mentioned being made subject to a reservation by plaintiff with respect to certain items in the bill of expenditures. The $86,238.24, for which the judgment was rendered, was therefore arrived at by deducting the gross expenses from the gross receipts, and dividing the remainder by 2. On April 12th defendants (separately) prayed to be allowed appeals from the judgment so rendered, and the minutes of the court show the following order by Judge Bell, to wit: On April 13th each defendant filed an appeal bond in the sum of $140,000; and on May 6th following plaintiff filed a rule to dismiss the appeals on the grounds that the bonds were insufficient in amount and the surety not such as required by law. The Atlanta, etc., Company answered, alleging that "the bond was given for the amount fixed by the judge, for the suspensive appeal, being one half over and above the money judgment, and $10,000 over and above the said sum to protect the plaintiff from any injury or waste to the land in question," and further alleging that the surety was good and sufficient. The Producers' Oil Company, "reserving all rights under pleadings and suspensive appeal filed herein," answered that the surety was good and sufficient. On the trial of the rule, which took place before Judge Sutherlin, it was shown, in addition to the facts stated, that on April 1, 1911, one well upon the land in controversy had produced 239.64 barrels of oil and that it was worth 50 cents a barrel, and we infer from the testimony that defendants had been continuously obtaining oil from said land after January 31, 1911, and were so obtaining it on August 2d, when the rule was tried; and something was said ord. It was further shown that other wells had been drilled upon tracts of land adjoining that in dispute, and were, and had been, producing oil, and the inference may reasonably be drawn that there is danger of their draining the tract in dispute. MONROE, J. On April 1, 1911, the distric court for the parish of Caddo rendered judg-about the production of a statement in detail ment in favor of the minor, Effie Bell Wad- of the yield, but we do not find it in the reckins, represented by her tutor, relator herein, against Producers' Oil Company and Atlanta & Shreveport Oil & Gas Company, in solido, recognizing said minor, and directing that she be put in possession, as owner of an undivided half interest in a certain tract of land, including the oil and gas wells thereon, condemning the defendants to pay her the sum of $86,328.24, with interest from January 31, 1911, and reserving her right to an accounting for oil and gas obtained from the land after the date last above mentioned. For the purposes of the judgment so obtain Judge Bell testified that he fixed the amount of the bonds after some consultation with the counsel for one of the appellants at a figure that he thought was ample, though somewhat lower than was suggested by the counsel, and that he was trying to fix it upon a legal basis, as well as he could get at it, "taking the estimated interest of the ap-| bonds should be given in order to suspend pellant" (probably meaning the appellee) "and the execution of the judgment was one the putting it one-half over and above." The fol- determination of which rested within the lowing appears upon cross-examination by discretion of the judge. C. P. 576, 577. In plaintiff's counsel: so far as the judgment condemned the defendants to pay a specific sum of money, the amount for which bonds were required in order to suspend execution is fixed by law as an amount exceeding by one-half the sum for which the judgment was given, including one-half the accrued interest. C. P. 575. "Q. The balance, the $10,000, was fixed how? The $130,000 was to take care of the moneyed judgment? A. I do not remember all these things now. I simply know that I investigated the matter, and merely have a recollection that I fixed it a little lower than was suggested by * * Q. You figured $10,000 damages sustained by plaintiff by being kept out of the land? A. I would have to review the case. I took the interest of the parties and discussed it, and fixed it a little lower than he suggested." counsel. The rule was dismissed by Judge Sutherlin on August 2d, and on the following day he signed a bill of exception, presented by counsel for plaintiff, with the following statement per curiam to wit: "The court held that, inasmuch as Judge Bell had the discretion to fix the appeal bond in such sum as he might see proper, provided he fixed it at more than one-half over and above the money judgment, and inasmuch as Judge Bell in the exercise of that discretion had fixed an appeal bond, though, in so doing, he did not specially take into account the revenues from the property, but merely fixed the bond in a lump sum, which he considered sufficient, such discretion, so exercised, could not be interfered with by the district court." It appears from the return of the learned judge to the order nisi issued from this court that the bill of exception thus referred to was not submitted to the opposing counsel as required by the rule of the district court; an effort to secure their presence when the bill was signed having proved unsuccessful. And, as the bill is of no particular value, save as containing a more succinct statement of facts, which, in the main, otherwise appear, we dismiss it from further considera If the judgment had condemned defendants for nothing save the money, an order granting the appeals, upon appellants giving bond according to law, would have been sufficient for the purposes of the suspensive appeal, since, in such cases, the judge is vested with no discretion; and it was only because the judgment also condemned the defendants to surrender the land and oil wells, and because defendants applied for a devolutive, as well as a suspensive, appeal, that he fixed the amount for the one at $140,000, and for the other at $150. Counsel for relator say that the judge intended to require security to the amount of $130,000 for the appeal, quoad the judgment for the money, and to the amount of $10,000 for the appeal, quoad the judgment for the property; but, that $130,000 falls short by $571.70 of the amount required by law to suspend the execution of the judgment for the money, and that $10,000 falls very far short of the amount which in the exercise of his discretion the judge ought to have fixed to suspend the judgment for the property, and hence that the aggregate amount of $140,000 is insufficient, and that the apCounsel predipeals should be dismissed. cate their views as to the intention of the judge upon certain averments made by the Producers' Oil Company in another case, Upon the dismissal of his rule, plaintiff and by the Atlanta Company in its answer to the rule to dismiss the appeal. We can applied to this court for a writ of certiorari, hardly be expected, however, to go beyond and he prays that the judgment of dismissal be reversed, that the rule be now made the order for the appeals, as entered upon absolute, and that this court decree that the the minutes of the district court, and the fact that appellants filed bonds for an amount of the appeal bonds in question was not fixed according to law, and is insufficient amount which, it is admitted, exceeds by to sustain any other than devolutive appeals.cution of the judgment for money. It may $9,428.30 that required to suspend the exe tion. Opinion. [1] The order for the appeals, as entereć upon the minutes of the district court, shows that the amount fixed for the suspensive appeal bonds (being the same in each case) was a lump sum, and that it was not attributed in specified proportions to the respective parts of the judgment appealed from which condemn the defendants, on the one hand, to surrender the property in dispute, and, on the other hand, to pay a sum of money. In so far as the judgment condemns the defendants to surrender the land claimed, together with the producing oil wells thereon, be that in discussing the question with counsel for the appellant the judge and the counsel calculated roughly that $130,000 was, approximately, the amount required for the purposes of the appeals, quoad the moneyed part of the judgment; but, if those exact figures were suggested, it indicates conclusively that absolute accuracy was not considered necessary, in view of the intention that the amount to be fixed was to be far enough in excess of $130,000, not only to cover the difference between that amount and the amount which the law required for the appeal from the judgment for the money, but, also, in the opinion of the judge, to (62 Fla. 239). the judgment for the property. The judge and the counsel knew that, to suspend the MIZELL LIVE STOCK CO. v. J. J. Mcexecution of the judgment as to the money, CASKILL CO. JECT TO ELECTION-PRIORITY. Oct. applies at all, applies as a general rule to The doctrine of election of remedies, when the first pronounced act of election or suit, and ond inconsistent suit or remedy. makes it a defense to the, prosecution of a sec [Ed. Note.-For other cases, see Election of Remedies, Dec. Dig. § 1.*] a bond was required for an amount exceed-| (Supreme Court of Florida, Division B. ing by one-half the amount of such judg- 4, 1911. Headnote Filed Nov. 14, 1911.) ment. They also knew that, whilst the judge was vested with no discretion in that regard, ELECTION OF REMEDIES (§ 1*)—REMEDIES SUB(Syllabus by the Court.) he was authorized and required to determine the amount necessary to suspend the execution of the judgment as to the prop-it erty; and, as the amount for which the bonds were to be given was fixed at $140,000, our conclusion is that it was the intention that the requirements in both directions should thereby be met, and that, as to the requirements for the appeal from that part of the judgment which condemned the defendants to pay money, they were met. As, however, there was but one judgment, one order of appeal, and one bond (by each defendant), and as plaintiff alleges that the amount required for the bonds quoad that part of the judgment which relates to the property was, and is wholly inadequate, the question remains, Can the relief here prayed for be granted on that account? And that question for several reasons must be answered in the negative. [2] (1) When the district court, in the exercise of an unquestionable jurisdiction, made its order granting the appeals and fixing the amount of the bonds, and the appeals were perfected in accordance with such order, its control of the case was lost; and when, some months later, the rule to dismiss the appeals came on for hearing, it was wholly without jurisdiction of the subject matter, from which it follows that this proceeding, having for its purpose the dismissal of the appeals by means of a review and reversal of the judgment of the district court dismissing said rule, is unauthorized, and cannot be sustained. [3] (2) All the requirements for devolutive appeals having been complied with, these appeals are good, as such, even if they were not good as suspensive appeals. [4] (3) The district court having exercised a discretion vested in it by law in fixing the amount of the bonds for the purposes of the appeals, quoad the judgment condemning defendants to surrender the property, the appellant cannot be held to lose his appeal because the amount is, or may be, less than it should be, though the appellee should be allowed a remedy, perhaps by way of a proceeding to compel an increase in the amount of the bond. Emmett Wolfe, Judge. against the J. J. McCaskill Company. Judg- ror. C. L. Wilson, for plaintiff in error. Wm. W. Flournoy, for defendant in error. 1908, the plaintiff, Mizell Live Stock ComHOCKER, J. On the 23d day of July, pany, a corporation, brought an action of replevin in the circuit court of Walton county against the defendant, J. J. McCaskill Company, to recover the possession of one sorrel black horse mule, about five years old, each mare mule, about eight years old, and one of the value of $250. The defendant filed a plea of not guilty on the 10th of October, 1908, and also on the 4th of May, 1910, a spe2d of January, 1909, the plaintiff filed a bill cial plea setting up in substance that on the of complaint in the circuit court of Jackson county against J. J. McCaskill Company to foreclose a mortgage lien on one sorrel black horse mule about four years old, being mare mule about seven years old and one the same mules described in the declaration, that said foreclosure suit was prosecuted to final decree, and that by reason of said foreclosure proceedings and final decree plaintiff elected to have the sale of said mules as absolute, and by such action and such final decree plaintiff's election became irrevocable and a bar to the prosecution of this suit. Copies of the bill of complaint, the mortage, and the decree are made parts of the plea. before this court for examination in the case The instrument called the mortgage was of Mizell Live Stock Co. v. J. J. McCaskill Co., 59 Fla. 322, 51 South. 547. On page It is therefore adjudged and decreed that this court distinctly held that by the instru329 of 59 Fla., and page 547 of 51 South., the order heretofore made in this case be ment in question it was the clear intention set aside, and that relator's demands be re- that the title to the first two mules described jected and this proceeding dismissed, at his therein was to remain in the seller, the cost, without prejudice, however, to any Mizell Live Stock Company, until the purright that he may have to proceed other-chase price was paid, and that also a mortwise, as he may be advised, for the protec- gage on other property was intended to be tion of the rights of his ward. executed by Grace, the buyer, for the pur pose of further securing the payment of the purchase price of such mules. It is apparent that this court construed the instrument as not being a mortgage on the mules bought by Grace of the Mizell Live Stock Company, but on other property, and on that theory that the plaintiff in that suit, which is the same suit we are now dealing with, had the right to introduce said instrument in evidence in support of its contention that the title and right of possession of the mules sold to Grace was in it. The foreclosure suit set up in the plea seems to have been commenced about the time when this replevin suit was first brought to this court, and which we dealt with in 59 Fla. 322, 51 South. 547, supra. The trial court held that the instrument in question was a mortgage, and not one reserving the title in the seller to the mules in question, which ruling this court reversed. This plea, setting up the foreclosure suit and the decree therein obtained in bar of this action, was demurred to by the plaintiff on the 4th day of May, 1910, and among the grounds of demurrer are these, in substance: (1) That the plea does not show any execution or enforcement of the decree against the said J. J. McCaskill Company. (2) That said plea shows said foreclosure proceeding was instituted long after the institution of this replevin suit. (3) Because the alleged foreclosure proceedings were instituted after the trial court herein had held that the paper purporting to retain title was a mortgage, not enforceable as a retention of title. against D. C. Grace and a corporation known as "J. J. McCaskill Company, a corporation," and that the service was upon and the decree against said corporation, but in fact there was no such corporation, and the defendant in this suit is a corporation known as "The J. J. McCaskill Company, a corporation," and that the decree against J. J. McCaskill Company, a corporation, could not be enforced. This replication was demurred to, and the demurrer was sustained. The plaintiff not desiring to join issue on the defendant's plea, the court directed that judgment be entered for the defendant, which was accordingly done. On writ of error the assignments of error are: First. The court erred in overruling the demurrer of the plaintiff, filed May 4, 1910, to the plea of defendant filed on the same day. Second. The court erred in sustaining the demurrer of the defendant to the first and second replications of the plaintiff to the plea of defendant. It will be observed that the defendant by its special plea invoked the doctrine of election of remedies as a bar to this replevin suit; the election consisting in the institution of a foreclosure suit brought subsequently to this action. The doctrine of election of remedies, when it applies at all, applies as a general rule to the first pronounced act of election or suit, and makes it a defense to the prosecution of a second inconsistent suit or remedy. We have discovered (4) Because the plea does not allege the no case in which the doctrine has been apcollection by the plaintiff of the alleged mort-plied as it is attempted to be applied in this gage or purchase-money note in said foreclo- plea. Am. Proc. Co. v. White P. B. Co., 56 sure proceedings, or the payment of the said | Fla. 116, 47 South. 942; 7 Ency. Pl. & Pr. 362, decree. 363. The whole theory upon which the lowThis demurrer was overruled, and the er court entertained the foreclosure suit as plaintiff then and there filed a replication, to the mules now in question was overstating in effect that the foreclosure pro- thrown in the case of Mizell Live Stock Co. ceedings were begun long after the institu- v. J. J. McCaskill Co., supra. The plea, tion of this replevin suit; that said decree therefore, set up no defense to this replevin has never been executed or enforced against suit, and the demurrer to it should have the defendant in this case; that nothing been sustained. This conclusion makes it has been collected under it; that the pur- unnecessary to discuss the other assignment chase-money paper, under which plaintiff re- of error. tained title to the mules herein sought to be recovered, is both a retention of title and a mortgage, and that plaintiff is now entitled to recover the said mules; and, second, that the foreclosure proceeding was instituted, long before the institution of this suit, The judgment below is reversed. TAYLOR and PARKHILL, JJ., concur. WHITFIELD, C. J., and SHACKLEFORD and COCKRELL, JJ., concur in the opinion. |