Virginia-Carolina Chemical Corp. v. Smith , 121 Fla. 720 ( 1935 )

This case is before us on petition for rehearing in which petition the correctness of our opinion and judgment entered herein on October 15th, 1935, is challenged.

It is contended in the petition that we overlooked the decision and opinion of this Court in the case of Ray v. Williams Phosphate Co., 59 Fla. 598, 52 So. 589. That opinion and judgment was not overlooked. The factual conditions are different in the case now before us to those which existed in that case. That was a chancery suit instituted to procure an adjudication that a certain final decree in a foreclosure proceeding theretofore entered was void because of fraud of the jurisdiction of the court occasioned by collusion between the parties. In that case it was held:

"One court of equity should not enjoin a party from proceeding in another court of equity of equal and co-ordinate jurisdiction, merely because of convenience. As between courts of co-ordinate power, the one first acquiring jurisdiction of the subject matter should as a general rule be permitted to retain it to the end."

It is pointed out in that opinion:

"No attempts were had in that suit to stop the sale or to show fraud in fact upon the court's jurisdiction; it cannot now in view of the admitted facts be argued that upon the face of the record the Judge of the Sixth Circuit had not jurisdiction to enter the decree that was entered and with the actual knowledge then possessed by Ray, he should have applied to that forum for relief."

In this case it is contended by the appellee that the judgment was void as to the judgment debtor because the lands involved in the judgment were not within the jurisdiction of the Circuit Court of Duval County and it is further contended that it is void as to the complainant in the court below, the appellee here, because the Circuit Court of Duval County never acquired jurisdiction of the person of F.D. Smith as a party to the proceedings supplemental to execution and that, therefore, the rights of F.D. Smith could not be adjudicated by that court and become binding on F.D. Smith.

The first contention is not tenable. Circuit Courts may be given extraterritorial jurisdiction. Section 11 of Article V of the Constitution provides, in part, as follows:

"The Circuit Courts shall have exclusive original jurisdiction in all cases in equity, also in all cases at law, not cognizable by inferior courts, and in all cases involving the legality of any tax, assessment or toll; of the action of ejectment and of all actions involving the titles or boundaries of real estate, and of all criminal cases not cognizable by inferior courts; and original jurisdiction of actions of forcible entry and unlawful detainer, and of such other matters as the Legislature may provide."

It was the evident intent and purpose of the Legislature in enacting Chapter 7842, Acts of 1919, Sections 4540 to 4549, inclusive, C.G.L., to "empower the Circuit Court to follow through with the enforcement of its judgment so that there would be no necessity for an independent suit to reach property which legally should be applied to the satisfaction of the judgment." Florida Guaranteed Securities Co. v. McAllister, 47 Fed. 2nd Ed. 762.

Judgments of the Circuit Court are enforceable in all counties throughout the State and the executions issued upon judgments rendered run with full force throughout the State. See Sec. 2818 R.G.S., 4505 C.G.L.

In South Florida Trust Co. v. Miami Coliseum Corporation,101 Fla. 1351, 133 So. 334, we held:

"The purpose of Chapter 7842, Acts of 1919 (Section 4540, Compiled General Laws of Florida), is to assist judgment creditors to discover any assets of the defendant that can be appropriated to the satisfying of judgment, thereby furnishing a new and additional means of making executions effective when a judgment has been secured and a fruitless effort made to satisfy it."

And in Reese v. Baker, 98 Fla. 52, 123 So. 3, we held:

"In proceeding supplementary to execution under Acts 1919, C. 7842 (Comp. Gen. Laws 1927, Sec. 4540, et seq.) and Comp. Gen. Laws 1927, Sec. 4542, court could require judgment debtor to make disclosure as to any property held by him or others in his behalf, whether property was located within or without boundaries of State, since purpose of statute is to aid judgment creditor, in securing information leading to satisfaction of execution, and information tending to do this directly or indirectly must be given."

Therefore, the Circuit Court of Duval County was not without jurisdiction in proceedings supplemental to execution to determine as between parties to those proceedings the rights of the judgment debtor in and to certain real estate lying within a county in Florida though not within the territorial jurisdiction of the Circuit Court of Duval County.

A judgment so entered, however, is not binding upon a person who is not a party to those proceedings. In the bill of complaint filed by appellee in the court below he alleges that he was not a party to those proceedings and the allegations of the answer are not sufficient to show that he was a party to those proceedings. The answer shows that he was subpoenaed as a witness to appear before a Commissioner. This did not make him a party to the proceedings. Neither is the answer sufficient to show that he intervened to contest his rights in those proceedings. The answer alleges that counsel appeared in behalf of F.D. Smith when he was summoned to appear as a witness. This did not have the effect of making him a party to the suit. The answer also alleges that counsel for the plaintiff in the law action and the petitioner in the proceedings supplemental to execution gave F.D. Smith notice of the final hearing in those proceedings and that counsel for F.D. Smith participated in the final hearing. But the record, which was made a part of the answer, does not show that counsel appeared in behalf of F.D. Smith as a respondent or defendant or party to that action. And, therefore, this appellee falls within the purview of the decision in the case of Ryan Furniture Exchange, Inc., v. McNair, et al., 120 Fla. 109, 162 So. 493.

In the case of Florida Guaranteed Securities, Inc., v. McAllister, et al., 47 F.2d 762, District Judge Ritter, of the District Court of the Southern District of Florida, said:

"There is no provision in these sections for procedure in reference to determining rights in real estate. The procedure in such respect is different from that in reference to personal property, as the statutes recognize. Instead of prescribing procedure in reference to real estate, the broad power is given the judge in Section 4548 to prescribe what in his discretion may be the proper procedure in reference to real estate. This section says that the court shall carry out `the full intent and purpose of this article to subject any property or property rights of any defendant to the satisfaction of any execution against him.' This must perforce include real estate. All claimants to the real estate must have a day in court. This is self-evident, and it is incumbent upon the court, under the power here conferred, to provide such procedure as will give all claimants in interest in reference to real estate a hearing.

"I construe the Florida statutes to be a substitute for a creditor's bill in equity. These statutes intended to empower the court to follow through with the enforcement of its judgment, so that there would be no necessity for an independent suit to reach property which legally should be applied to the satisfaction of the judgment.

"`Conflicting rights to property involved in supplementary proceedings should not be settled in an independent action, the suggestion being made that where such conflict arises, interpleaders in the supplementary proceedings should be filed.' 10 R.C.L. 163, p. 1373.

"`A judgment creditor's bill is in essence an equitable execution comparable to proceedings supplementary to execution.' Pierce v. United States, 255 U.S. 398, 41 S. Ct. 365, 366, 65 L. Ed. 697.

"`When jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a court or juridical officer all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.' Bates v. International Co. (C.C.) 84 F. 518, 525.

"The above was a statement in a California case with reference to the exercise of power under proceedings supplementary to execution, and was approved by the Federal Court and is applicable in this case especially.

"The intent and purpose of these statutes under Article V aforesaid must be to give a full-rounded jurisdiction, including the proper procedure, to determine under supplementary proceedings what property of every kind, legal or equitable, is the property of a defendant which should be subjected to execution, and in determining this fact, where there are adverse claimants, it necessarily follows that the court has the power and it is his duty to summons into court by an order, all adverse claimants, and require them to set up their rights and to give everybody a day in court in a trial of the issues which may be raised."

While this decision is not binding on this Court, it is of persuasive value, and, as we think it states the rule of law which should be applied in these cases, we quote it with approval. We cannot adopt the rule that a party who has knowledge of the pendency of a law action is bound by judgment rendered in such law action without formally intervening therein or being served with process to appear therein and defend his rights, if any he has, in the subject matter of such law action.

Rehearing denied.

WHITFIELD, C.J., and TERRELL, BROWN and DAVIS, J.J., concur.