CHARLES C. MAST, APPELLANT,
v.
GEORGE B. BAKER, AS SHERIFF IN AND FOR PALM BEACH COUNTY, FLORIDA, APPELLEE
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Mast sought to enjoin Sheriff Baker from selling land levied upon in execution of a judgment in favor of Guild. The Florida Supreme Court affirmed the dissolution of the restraining order, holding that the judgment creditor Guild was a necessary party defendant who was not properly joined in the equity proceeding.
The order dissolving the restraining order was proper and should be affirmed because the judgment creditor (plaintiff in execution) was a necessary party defendant who was not properly before the trial court, depriving the court of jurisdiction to enjoin the execution sale.
“Although the point is not made, if such plaintiff in execution was a necessary party to the proceeding, we must notice such fact of our own motion and refuse to adjudicate the matters involved.”
Establishes the court's duty to sua sponte raise the issue of necessary parties even when not argued by the parties.
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Join FLexlaw to unlock all legal intelligenceCharles C. Mast was a defendant in execution upon a judgment recovered by F. A. Guild. Sheriff Baker levied on certain lands belonging to Mast and adv…
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Shackleford, J.
Charles O. Mast, who was the defendant in execution, which had issued upon a judgment recovered against him by F. A. Guild, filed his bill in chancery against George B. Baker, as sheriff in and for Palm Beach County, Florida, wherein the complainant sough! to restraint the defendant from proceeding with the sale of certain described lands, which had been levied on as the property of the complainant, upon the ground that the notiie of such sale was not being published for the period of time required by the statute. A restraining order was granted by a court commissioner, which upon the motion of the defendant was dissolved by the Circuit Judge. From this order the complainant has entered his appeal.
It will be observed that F. A. Guild, the plaintiff in execution, was not made a defendant to the bill, nor has he appeared in the cause, so as to give tis jurisdiction over his person. Although the point is not made, if such plaintiff in execution was a necessary party to the proceeding, we must notice such fact of our own motion and refuse to adjudicate the matters involved. See Florida Land Rock Phosphate Co. v. Anderson, 50 Fla. 501, 516, 39 South. Rep. 392, and Sarasota Ice, Fish & Power Co. v. Lyle, 53 Fla. 1069, 43 South. Rep. 602, wherein other decisions of this court will be found cited. We think that there can be no question that the plaintiff in execution was a necessary party defendant, as he was directly interested in the matter. It would also seem that the sheriff, who is made the sole defendant, was not a necessary, and probably not even a proper, party defendant. See Alston v. Rowles, 13 Fla. 110, text 116, and Fairchild v. Knight, 18 Fla. 770, text 788. No point was made in Hayes v. Frohock, 56 Fla. 794, 47 South. Rep. 343, as to the joinder of the sheriff as a party defendant with the plaintiff in execution, so that the matter was not discussed. We would also refer to Olin v. Hungerford, 10 Ohio 268, text 272; Edney v. King, 4 Iredell Eq. (N. C.) 465; 10 Ency. of Pl. & Pr. 916; Spelling on Injunctions (2nd ed.) section 977. It may also well be true that there was no occasion to resort to a court of equity in order to obtain the relief sought, as the Circuit Judge might have afforded it on motion, but this point is not properly before us for determination, so we content ourselves with referring to 3 Freeman on Executions, section 436, and the authorities there cited. As the plaintiff in execution who is a necessary party defendant, was not before the trial court, it follows in the opinion of the members of the court other than the writer, that the order dissolving the injunction was proper and should be affirmed, while the writer is of opinion that the appeal should be dismissed.
Order affirmed.
Taylor, O. J., and Cockrell, Whitfield and Ellis, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Green v. Hood, 98 So. 2d 488 (Fla. 1957)…in holding that an execution or attachment creditor or other person for whom an officer acts in seizing or selling property is not only a proper but a necessary party to a suit against such officer to enjoin such seizure or sale. See Mast v. Baker, 69 Fla. 585, 68 So. 769; cases cited in annotation in 106 A.L.R. 613 et seq. The appellant properly proceeded by motion to vacate the decree, rather than by an independent proceeding in equity, although the latter method of attack might also have been proper.…
Authorities Cited
- Fla. Land Rock Phosphate Co. v. Anderson, 50 Fla. 501 (Fla. 1905)
- Fairchild v. Lucinda M. House, 18 Fla. 770 (Fla. 1882)
- The Sarasota Ice v. Lyle & Co., 53 Fla. 1069 (Fla. 1907)
- Alston v. Rowles, 13 Fla. 110 (Fla. 1869)
- Hayes v. Frohock, 56 Fla. 794 (Fla. 1908)