#### Paul RITTER, Appellant, v. R. C. BENTLEY et al., Appellees.

Supreme Court of Florida. En Banc.

March 11, 1955.

H. C. Crittenden, Winter Haven, for appellant.

Robert T. Miller, Chas. F. Chastain and Oxford & Oxford, Lakelánd, for appellees.

TERRELL, Justice.

Appellant as plaintiff below sued ap-pellees as principals and sureties on a su-persedeas bond in the sum of $10,000. The bond was approved pursuant to order of the Circuit Court from a final decree in chancery dated January 7, 1952, in which the same parties were plaintiff and defendants. The court found a balance due on attorney’s fees in the sum of $6,500, and defendants are indebted to plaintiff in said sum of $6,500, together with interest thereon at the rate of six percent per annum from July 17, 1951.

The complaint alleges these facts and the further fact that the Supreme Court affirmed said decree, Fla., 60 So.2d 544, that it became necessary for plaintiff to employ counsel to represent him in said appeal and that he agreed to pay him a reasonable attorney’s fee for said services, which he alleges to be of the' value' of *%2r*000, in addition to $75 incurred in the way of traveling expenses to attend the oral argument at Tallahassee. The complaint alleges that defendants defaulted in performance of their obligation on said bond, in that they have refus'ed 'to pay him said expenses and attorney’s fees. A motion *574to dismiss the complaint was granted and the plaintiff has appealed from that order.

The sole point for determination is whether or, not the provision of the super-sedeas bond securing payment of a reasonable attorney’s fee to plaintiff’s attorney is legal and may be enforced.

The applicable part of said bond is as follows:

> “Now, Therefore, * * * shall pay and satisfy the amounts found due plaintiff in the final decree herein in full with costs, interest and damages, including attorney’s fee, if the appeal herein is dismissed or the final decree herein is affirmed, or if the said decree is modified to satisfy in full such modification of said decree, and such costs, interest, and damages as the appellate court may award, * * * ”.

The complaint was dismissed on the ground that the part of the bond authorizing attorney’s fees was without legal authority, consequently it failed to state a cause of action. Bernstein v. Bernstein, Fla., 43 So.2d 356, and Larson v. Higginbotham, Fla., 66 So.2d 40, are relied on to support this contention. These cases hold that attorney’s fees in resisting an appeal from a final judgment or final decree on the merits, are not recoverable and it is improper for the court to require such a condition in a supersedeas bond. They also overrule Kahn v. American Surety Co. of New York, 120 Fla. 50, 162 So. 335, and other cases of similar import, appearing to hold that attorney’s fees for services in resisting an appeal from a final decree or final judgment on the merits in the Supreme Court may be imposed.

Appellant has urged eight questions, none of which complies with the rule prescribed in Kneale v. Kneale, Fla., *67*So.2d 233, to overcome the doctrine of the cited cases. In fine, it is contended that the bond in this case was posted before the decision in Larson v. Higginbotham, suppra, and being so the law announced in Kahn v. American Surety Co. of New York, supra, and similar cases is controlling, that the doctrine of Larson v. Higgin-botham is confined to those cases which were timely appealed under the provisions of Rule 35(e) of the Rules of this Court, 30 F.S.A., and Section 59.13(6), F.S.A., and not to those cases in which the obligors on the bond failed to challenge the validity of its conditions before the courts in which the bond was posted lost jurisdiction of the cause.

The two preceding paragraphs squarely present the issue in this case. It boils down to whether the case of Bernstein v. Bernstein, supra, and the case of Larson v. Higginbotham or Kahn v. American Surety Co. already cited, controls. It is true that in Larson v. Higginbotham [66 So. 2d 41] we said that anything in Kahn v. American Surety Co., supra, “appearing to hold that attorneys’ fees for services in resisting an appeal'from a final judgment or final decree on its merits in the Supreme Court is hereby overruled and receded from”. Bernstein v. Bernstein and Larson v. Higginbotham both had to do with a case in which an appeal was taken from a final decree or final judgment on the merits, absent contract to pay attorney’s fees. The effect of the Court’s holding was that under such circumstances attorney’s fees could not be imposed as part of the cost of the appeal.

In Kahn v. American Surety Co. of New York [120 Fla. 50, 162 So. 336] the supersedeas bond bound the surety to pay “ ‘all costs, damages, expenses and attorneys’ fees’ ” which may be incurred by appellee in the event appeal is dismissed or the cause affirmed by the Supreme Court. Where a surety so contracts and binds himself to pay attorney’s fees we do not understand that Bernstein v. Bernstein and Larson v. Higginbotham intended to abrogate such contracts or to otherwise hold that they were not good and enforceable. In the case at bar the contract for payment of attorney’s fees was in all material respects similar to that before us in Kahn v. American Surety Co. of New York on authority of which we think the judgment appealed from should be reversed.

*575In this holding we do not overlook Section 59.13, F.SA., and Supreme Court Rule 35(e) that were before the Court in Bernstein v. Bernstein and Larson v. Higginbotham. The holding in these cases was to the effect that the Circuit Court was without authority under the rule or the statute to impose attorney’s fees as part of the expense of an appeal. In neither case, as was true in this case and in Kahn v. American Surety Co. of New York, was the Court confronted with a case in which the surety bond itself was to pay attorney’s fees.

The judgment appealed from is therefore reversed.

Reversed.

MATHEWS, C. J., and ROBERTS, J., concur.

HOBSON, J., concurs specially.

THOMAS, SEBRING and DREW, JJ., dissent.

HOBSON, Justice

(concurring specially).

I concur in the opinion prepared by Mr. Justice TERRELL. I am constrained, however, for the sake of clarity, to express the primary reason for such action.

Regardless of the fact that it may have been improper for the court to require that an attorney’s fee be made a condition of the supersedeas bond, the bond did stipulate that it was given to secure not only “costs, interest and damages” but it expressly included an “attorney’s fee”. The record does not disclose that any objection was made at the time the condition, included in the bond, was imposed by the trial judge, and I hold the view that appellees, by their failure to object to the condition, waived their right to object thereto and are now estopped from contending that the inclusion of such condition was unauthorized and improper. Moreover, if perchance objection was interposed in the trial court and overruled, we fail to find in the record any attempt by the ap-pellees to have the order fixing the terms and conditions of the supersedeas bond reviewed, modified or discharged by this court. Under the provisions of Supreme Court Rules of Practice, Rule 35(e), ap-pellees might have filed a motion in this court for a review, modification or discharge of the bond, had they deemed it to be “arbitrary or unreasonable or such as is for any other reason not proper.”

I therefore concur in the judgment of reversal.

MATHEWS, C. J., and TERRELL and ROBERTS, JJ., concur.

DREW, Justice

(dissenting).

This is an appeal from a final judgment dismissing a complaint with prejudice because it failed to state a claim on which relief could be granted.

A clear understanding of the proposition presented by the appeal requires a review of the pertinent allegations of the complaint. The complaint alleged inter alia that on February 5, 1952 defendants (in the lower court) made, executed and filed in the office of the Clerk of the Circuit Court of Polk County, Florida, a super-sedeas bond, in the principal amount of $10,000, conditioned to pay the plaintiff (in the lower court), among other things, costs and damages, *including attorneys’*fees, in the event the Supreme Court of Florida affirmed the final decree entered in the cause referred to in the bond. A copy of the bond was attached to and made a part of the complaint. The complaint further alleged that on appeal said decree was affirmed by the Supreme Court of Florida. It then alleged that it was necessary for plaintiff to employ counsel to represent him in said appellate proceedings, that he did so and agreed to pay his counsel a reasonable fee for said services in the sum of $2,000 and that, in addition thereto, *576plaintiff was forced to spend the sum of $75 and travelling expenses in attending the oral argument in Tallahassee. The complaint concluded with the allegation that defendants have defaulted in the obligation of said bond and have refused to pay the plaintiff his expenses and attorney’s fee.

The bond, which was made a part of thé complaint by reference, was in the sum of $10,000, recited the pendency of the appeal from a final decree of the Circuit Court of Polk County, and was conditioned “that if the said R. C. Bentley, R. C. Bentley, Inc., and Bentley Brahman Ranch, Inc., shall prosecute their appeal to effect, and failing to make their plea good, shall pay and satisfy the amounts found due plaintiff in the final decree herein in full with costs, interest, and damages, including attorney’s fee, if the appeal herein is dismissed or the final decree herein is affirmed, or if the said decree is modified to satisfy in full such modification of said decree, and such costs, interest, and damages as the appellate court may award, then this obligation shall be null and void, else to remain in full force and effect.”

This case is controlled squarely by Bernstein v. Bernstein, Fla.1949, 43 So.2d 356, and Larson v. Higginbotham, Fla. 1953, 66 So.2d 40. The lower court, on the authority of these cases, was entirely correct in holding that the complaint stated no cause of action.

It is suggested in the opinion by Mr. Justice Terrell that “Bernstein v. Bernstein and Larson v. Higginbotham both had to do with a case in which an appeal was taken from a final decree or final judgment on the merits, *absent contract to pay attorney’s fees.*The effect, of the Court’s holding was that under such circumstances attorney’s fees could not be imposed as part of the cost of the appeal.” (Emphasis added.) There is nothing whatever in this record upon which it could be argued that there was any *contract*to pay the attorney’s fee being sued for. The record here is silent as to whether the supersedeas bond was posted voluntarily by the appellant pursuant to the . provisions of Supreme Court Rule '35 and Section 59.13, F.S.1951, F.S.A. Its language indicates it was posted pursuant to an order under either Rule 35(b) or 35(c), 59.13(4), (5), F.S. 1951, F.S.A., because “further conditions” viz., attorney’s fees were provided for. In either event it was required in order to supersede the decree being appealed from and was authorized under Rule 35 and Section 59.13, supra. The extent of the liability under .the bond was circumscribed by such rule and statute.

Mr. Justice Hobson in his opinion concurring specially with Justice Terrell states “I hold the view that appellees, by their failure to object to the condition, waived their right to object thereto and are now estopped from contending that the inclusion of such condition was unauthorized and improper.” The views so expressed by Mr. Justice Hobson are directly contrary to what we held in Bernstein v. Bernstein, supra [43 So.2d 358]. There, in reviewing the correctness of a judgment entered by the lower court on a bond conditioned in almost identical language as the bond under consideration and posted pursuant to the provisions of an order of the lower court, we said, *"If an illegal condition [payment of attorney’s fees to the successful appel-*lee] *is inserted by a Circuit Court in a supersedeas bond, the condition will be ignored as superfluous.”*(Emphasis added.) The only difference in the case of Bernstein v. Bernstein and this case is that in the Bernstein case we were reviewing a final judgment entered *in favor of the successful appellee*in the supersedeas bond, whereas in the instant case we are reviewing the correctness of a final judgment *against the successful'appellee*on the same proposition. Having reversed the former, we must affirm the latter.

In Larson v. Higginbotham, supra [66 So.2d 41], we reviewed the numerous ca.ses which have been decided by this Court on this question and held that “attorneys’ fees, in resisting appeal from a final judgment *577or final decree on 'the merits, are not recoverable and it is improper to require such a condition in a supersedeas bond.”

Every litigant has the right under oür Constitution to have this Court review any final judgment or final decree rendered in any of the circuit courts of this State exercising original jurisdiction. It seems to me that to require an unsuccessful appellant to pay the attorney’s fees and expenses of his adversary in defending an appeal in this Court on its merits would be a serious and sometimes fatal impediment and unlawful burden upon his exercise of a right secured him under the Constitution.

I would affirm the'judgment of the lower court.

THOMAS and SEBRING, JJ., concur.