State Ex Rel. v. Knott , 114 Fla. 95 ( 1934 )

This is a mandamus proceeding the object of which is to require the State Treasurer to sell certain bonds deposited with him by a surety company under Sections 6302-6303 C. G. L., 4339-4340 R. G. S., so as to raise sufficient cash to fully discharge a judgment recovered by relator against Union Indemnity Company.

The return to the alternative writ shows that prior to the institution of the suits brought by relator against the surety company, that said surety company became insolvent and was under an order of corporate dissolution at the time of the entry of the judgments herein sought to be paid.

It is further shown by the return, and admitted to be true by relator's motion for a peremptory writ, that the assets of the defunct Union Indemnity Company had, prior to entry of relator's judgments, been placed in liquidation in the State of Louisiana; that by judicial order of a court in said State of Louisiana, under the laws of which Union Indemnity Company was incorporated, that the corporate entity of the said surety company had been dissolved; that general receivers had been appointed for its properties; that by order of the Circuit Court of Leon County, Florida, in Chancery, dated May 23, 1933, that one D. M. Lowry had been appointed receiver for the Union Indemnity Company in aid of the Louisiana receivership; that said appointment had been duly applied for and made under Chapter 16248, Acts of 1933, Laws of Florida. It is contended that by reason of the claims of relator not having been actually reduced to judgments prior to the insolvency of the surety company and the appointment of a judicial receiver for its Florida assets under said 1933 Act, that relator acquired no lien on any of the deposited securities held by the State Treasurer under the statute; that consequently relator was not entitled to have the State Treasurer sell for relator's benefit, any of the deposited securities to satisfy relator's judgments, inasmuch as they had been obtained after the surety company's insolvency and its being placed in receivership.

Under Chapters 16247 and 16248, Acts of 1933, Laws of Florida, final judgments recovered in the courts of this State against surety companies after an adjudication of their insolvency, and the placing of their affairs in receivership for the purpose of winding up their affairs, are payable proportionately with claims of all other Florida creditors. It is expressly provided in Chapter 16248, supra, that upon the assumption of jurisdiction of a court of chancery in this State of the securities and assets of a defunct surety company, all actions against such company shall be stayed and that effect shall be given to the chancery procedure through ratable payment of creditors out of the assets on deposit and otherwise available for the purpose of satisfaction.

In the present case the Union Indemnity Company was placed in receivership in Louisiana, the State of its incorporation, on January 6, 1933. The judgments in this State were recovered after the date of the adjudication of insolvency in Louisiana, but prior to the appointment of a receiver in Florida. Only a judgment creditor who has given the statutory notice provided for by Section 6303 C. G. L. as to non-payment of his judgment, is entitled to claim a lien on the securities or deposit with the State Treasurer under Section 6302 C. G. L.,supra. Board of Public Inst. v. Knott, 106 Fla. 869, 143 Sou. Rep. 735. The notice given in this case to the State Treasurer that relator's judgments had remained unpaid for thirty days, so as to warrant resort to the special securities on deposit to satisfy relator's judgments, was not given until August 1, 1933, which was after the date of the appointment of a Florida receiver under Chapter 16248, supra.

We hold therefore that relator, prior to the appointment of a Florida receiver on May 23, 1933, never acquired any lien on the deposited securities, because of the provisions of the statute requiring notice to be served on the State Treasurer after thirty days default in payment of judgments.

Prior to service of "notice of failure to pay" the amount of any judgment within thirty days after its rendition against a depositing surety company, the securities on deposit are not, under the terms of Section 6303 C. G. L., 4340 R. G. S., "subject to the order of the court trying (the) suit" in which the judgment was rendered, and consequently no lien on the deposited securities can be acquired by merely certifying copies of unpaid judgments to the State Treasurer, in advance of default for thirty days in payment of same.

The motion for a peremptory writ of mandamus must be denied and the proceeding dismissed at relator's costs, but without prejudice to the right of relator to have his judgments filed as claims against the assets in receivership, to be paid proportionately out of the same as provided by law.

Peremptory writ denied and proceeding dismissed at relator's cost.

ELLIS and TERRELL, J. J., concur.

WHITFIELD, P. J., and BUFORD, J., concur in the opinion and judgment.