WILLIAM COLLIER ET AL., APPELLANTS,
v.
J. C. ANDERSON, SHERIFF, ET AL., APPELLEES
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The Florida Supreme Court reversed a lower court decision that had dissolved an injunction preventing the sale of real estate. The court held that a writ of attachment issued by a county judge in 1891 could not be levied upon real estate, and thus did not create a lien superior to the complainants' ownership claim.
The court held that a writ of attachment issued by a county judge in January 1891 could not be levied upon real estate, and therefore did not create a lien superior to the complainants' title. The county judge's authority was limited to that of a justice of the peace, and under the applicable statute (Chapter 2040 of the 1875 acts), writs of attachment issued by justices of the peace could not be levied upon land.
“a writ of attachment issued by a justice of the peace under this act can not be levied upon land”
Establishes that attachments by justices of the peace could not be levied on real estate, limiting county judges to the same authority
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Join FLexlaw to unlock all legal intelligenceComplainants Collier and others sought to enjoin Sheriff Anderson and others from selling real estate in their possession, which they claimed to own b…
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Liddon, J.:
The appellants, who were complainants below, brought their bill in equity to restrain the appellees, defendants below, from selling certain real estate, of which complainants were in possession claiming title, under an execution issued by a county judge. A temporary injunction which had been granted by a court commissioner was dissolved, and complainants appealed.
Only one single matter of defense was urged in the court below, which was that before.the land was conveyed to complainants by one I). J. Allen, the defendant Detwiier has sued out an attachment against said Allen as a non-resident before the County Judge of Orange county, and the same had been levied upon said land. The only point upon which our judgment is invoked is whether the levy of this writ of attach ment created a lien upon land levied upon superior to the claim of the complainants, who purchased the same from the defendant in attachment. If a county judge, in January, 1891, the date of the writ of attachment, had authority to issue such a writ at all, it was by virtue of the provisions of the Constitution of 1885, giving him jurisdiction of all cases at law where the value of the property involved does not exceed one hundred dollars, and statutes prior thereto. The writ was issued and levied in January, 1891. Since the adoption of such Constitution there had been at said time no statute authorizing attachments by county judges. The act of 1889 (ChaxDter 3888 laws of Florida) provides that in proceedings before county judges the rules of practice and pleading shall be the same as established by law for courts of justices of the peace. The appellees in their brief only claim that the writ was legally issued and levied because in. such issuing and levying the statute was pursued which authorized such action in courts of justices-of the peace. If, therefore, a writ was issued by a justice of the peace could not be levied upon real estate, the reasons are the same why at the time in question (January, 1891) such a writ issued by a county judge could not be so levied. The only act then in force generally authorizing writs of attachment by justices of the peace was Chapter 2040, acts of 1875. It has been settled in this State that a writ of attachment issued by a justice of the peace under this act can not be levied upon land. McGehee vs. Wilkins, 31 Fla. 83, 12 South. Rep. 228. As the power of a county judge in such cases under statutes at the time in force, could not exceed that of ¿.justice of the peace, we are of the opinion that prior to the adoption of the Revised Statutes of 1892, an at tachment-issued by a county judge could not be levied, upon real estate.
The decree of the Circuit Court is reversed, and the case remanded with directions that such further proceedings be had therein as may be consistent with law and this opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Haimovitz v. Wm. Hector, 79 Fla. 28 (Fla. 1920)…9 or 2212, General Statutes, do not authorize the sale of real estate under an execution issued by a justice of the peace. See Ferrell v. Reed. 60 Fla. 62, 53 South. Rep. 935; McGehee v. Wilkins, 31 Fla. 83, 12 South. Rep. 228; Coollier v. Anderson, 36 Fla. 635, 18 South. Rep. 850. [*33] Under the Constitution the Circuit Courts have .exclusive equity jurisdiction, and by Sections 1960 and 2529, General Statutes, ample remedy is afforded for enforcing all liens in the Circuit Courts. As under the constitu…
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Lewis v. Jefferson D. Stephens, 85 Fla. 437 (Fla. 1923)…evy and a description of the property levied upon.” The statute referred to in McGehee v. Wilkins, 31 Fla. 83, 12 South. Rep. 228, giving the form of writs of attachment issued by justices of the peace, is not now in force. See Collier v. Anderson, 36 Fla. 635, 18 South. Rep. 850. [*439] ■ Under the quoted statutory provisions where a writ of attachment is duly issued by a county judge in an action pending before such judge and is duly served and a notice of the levy and a description of the property levi…
Authorities Cited
- McGehee v. Wilkins, 31 Fla. 83 (Fla. 1893)