GOODYEAR TIRE & RUBBER COMPANY, A CORPORATION, APPELLANT,
v.
LEE DANIEL, APPELLEE
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Lee Daniel sought to enforce a mortgage lien on an automobile against Goodyear Tire & Rubber Company, which claimed a superior execution lien. The Florida Supreme Court reversed the trial court's judgment, holding that the execution lien, which attached when the writ was delivered to the sheriff in April 1914, was superior to the mortgage lien recorded in June 1915.
The execution lien is superior to the mortgage lien because it attached at an earlier date (April 1914 versus June 1915). When a complainant sets a case down for hearing on bill and answer before replication is filed, the complainant admits the truth of all allegations in the defendant's answer, and the court must treat those allegations as established.
“Where the complainant in a bill in chancery sets the cause down for hearing on bill and answer before replication filed to the answer, and, consequently, before the case is at issue, such complainant, in thus shutting the defendant off from proving the truth of his answer, must be held at such hearing to have admitted the truth of all the allegations of the answer”
Establishes the procedural rule that setting a case for hearing before replication constitutes an admission of the defendant's answer.
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Join FLexlaw to unlock all legal intelligenceW. J. Corner owned an automobile and was subject to a judgment obtained by Goodyear Tire & Rubber Company in November 1913 for $252.04 plus costs. An …
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Per Curiam.
—Lee Daniell brought a bill in equity to enforce a mortgage lien executed June 15, 1915, and recorded June 19, 1915, upon an automobile as the property of W. J. Corner, the Goodyear Tire & Rubber Company who claims some interest in the automobile being made a co-defendant. By answer on March 6, 1916, the Goodyear Tire & Rubber Company averred in effect that on November 3, 1913, it recovered a judgment in the Circuit Court for Escambia County against W. J. Corner doing business as the Corner Garage for $252.04 and $4.38 costs upon which judgment “execution was issued on the 24th day of November, 19x3, which execution according to a return made thereon by the sheriff went into his hands on the 20th day of April, 1914;'’ that on or about August 12, 1915, the sheriff levied said execution on the automobile; that when the execution passed into the hands of the sheriff, April 20, 1914, it became a lien upon the automobile, under which lien the automobile was sold to the defendant company and that said execution lien was superior to the mortgage lien recorded June 19, 1915.
The complainant, on March 14, 1916, set the cause down for hearing on bill and answer, before replication was filed to the answer. The court held the mortgage to be the superior lien and decreed accordingly. The Goodyear Tire & Rubber Company appealed.
Where the complainant in a bill in chancery sets the cause down for hearing on bill and answer before replication filed to the answer, and, consequently, before the case is at issue, such complainant, in thus shutting the defendant off from proving the truth of his answer, must be held at such hearing to have admitted the truth of all the allegations of the answer, notwithstanding any formal defect in the oath to such answer. Lee v. Bradley Fertilizer Co., 44 Fla. 787, 33 South. Rep. 456; 3 Am. & Eng. Ency. Law & Proc. 1426. The statute dispensing with replications in certain chancery cases, Chap. 6907, Acts of 1915, does not change this rule.
An execution is a lien upon personal property of the defendant in execution from the time such writ shall be delivered to the sheriff. See Love v. Williams, 4 Fla. 126. The cause was set down for hearing on bill and answer, and the answer shows that the lien of the execu tion is prior in date to the mortgage lien, therefore the execution lien is superior, and the decree is erroneous.
Decree reversed.
Taylor, C. J., and Shackleford, Cockrell, Whitfield and Ellis, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
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The Seaboard Oil Co. v. Donovan, 99 Fla. 1296 (Fla. 1930)…, all the pertinent averments of the answer are taken as true (Smith v. Miami, 79 Fla. 509, 84 So. R. 370; Lee v. Bradley Fertilizer Co., 44 Fla. 787, 33 So. R. 456; Godwin v. Phifer, 51 Fla. 441, 41 So. R. 597; Goodyear Tire & Rubber Co. v. Daniel, 72 Fla. 489); and this is true whether the allegations of the answer are responsive or not, on the ground that no. [*1304] replication, having been filed, defendant is deprived of the opportunity of proving, his allegations. 1 Enc. Pl. & Pr. 924; 21 C. J. 560;…
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Black v. Elliot L. Miller, 219 So. 2d 106 (Fla. 3d DCA 1969)…ained after execution issued and the levy of May 29, 1967. An execution issued on a judgment operates as a lien on the property of the defendant in execution from the time such writ is delivered to the Sheriff. Goodyear Tire & Rubber Co. v. Daniell, 72 Fla. 489, 73 So. 592 (1916). An execution lien ordinarily takes priority over other claims arising subsequent thereto. 13 Fla.Jur. Executions § 37, 33 C.J.S. Executions § 300 and Annotation: Alimony or Support Decree—Lien, 59 A.L.R.2d 656, 683. There was no…
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Smith v. Purdy, 272 So. 2d 545 (Fla. 3d DCA 1973)…our view. The law provides that a judgment will operate as a lien on personal property of the judgment debtor within the county from the time that a writ of execution based thereon is delivered to the sheriff. Goodyear Tire & Rubber Co. v. Daniell, 72 Fla. 489, 73 So. 592; Black v. Miller, Fla.App.1969, 219 So. 2d 106. Where several executions against a judgment debtor are delivered to the sheriff each will become a lien on the personal property of the judgment debtor within the county. Priority of the li…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Love v. Williams, 4 Fla. 126 (Fla. 1851)
- Lee v. The Bradley Fertilizer Co., 44 Fla. 787 (Fla. 1902)