Mercantile Investment & Holding Co. v. Gilliland

Per Curiam. The record in this case discloses that on June 2, 1939, a final judgment was entered in the Circuit Court of Broward County, Florida, in favor of the defendant in error against the plaintiff in error in the sum of. $50,000.00 and costs. The parties will be referred to hereinafter as plaintiff and defendant as they appeared in the court below. On November 20, 1939, a writ of execution issued on the *855 aforesaid judgment, as well as a writ of garnishment against Hollywood, Inc., a Florida corporation, garnishee. The Hollywood, Inc., garnishee, answered the writ of garnishment and acknowledged an indebtedness to the defendant in the sum of $249,928.60, which was not due, but the payment thereof was contingent upon the garnishee’s selling real estate at a price prescribed and obtaining a net profit, and if these anticipated sales and profits could be made and consummated, the garnishee would be obligated to pay the named sums. The writ of execution on said judgment and the return thereon were not filed in the office of the Clerk of the Circuit Court of Broward County, Florida. On November 25, 1939, the lower court issued on the aforesaid judgment a special writ of execution directing a levy upon the goods, chattels and effects of the defendant in the possession and control of Hollywood, Inc., garnishee, as disclosed by its aforesaid answer. On December 16, 1939, the defendant moved the court for an order staying the writ of execution upon equitable grounds, and on the 22nd day of December, 1939, the lower court entered an order overruling and denying the motion for a stay of execution, but suspended all proceedings under the special writ of execution until January 22, 1940. The Sheriff of Broward County advertised for sale on the rule day in July, 1940, the unmatured contingent indebtedness described in the answer of Hollywood, Inc., garnishee. The defendant, under the provisions of Section 4516 C. G. L., moved the court for a stay of the special writ of execution dated November 25, 1939, and to suspend all proceedings thereunder, and on June 14, 1940, an order was entered by the lower court overruling and denying said motion. From the second order denying a stay of the special writ of execution a writ of error was sued out, and *856 on appeal perfected therefrom and the cause is here for review. On the very threshold of this case we are confronted with the contention that the order dated June 14, 1940, denying a stay of execution for the second time, and to review the same, a writ of error was obtained, presents the question of res adjudicate/,, or former adjudication, upon the theory that a similar motion to stay execution was denied by the lower court in said cause on December 22, 1939. We have carefully studied the grounds of the motion filed December 16, 1939, pursuant to Section 4516 C. G. L., as well as the grounds of the second motion filed in the lower court on June 14, 1940. While the latter motion presents additional grounds .to the motion filed December 16, 1939, the two motions were presented under Section 4516, C. G. L. We think the order entered by the lower court dated June 24, 1940, to which writ of error was taken, was fully adjudicated in the order dated December 22, 1939, and the same is res adjudicata, and the case at bar is ruled by Dr. P. Phillips Co. v. Billo, 109 Fla. 316, 147 So. 579. We do not think it necessary to pass upon or determine the other questions involved. The order appealed from is hereby affirmed. Terrell, C. J., and Whitfield, Brown, Buford and Ti-iomas, J. J., concur. Ci-iapman, J., dissents.