RAY E. GREEN, AS COMPTROLLER OF THE STATE OF FLORIDA, APPELLANT,
v.
L. S. HOOD AND WILLIS V. MCCALL, AS SHERIFF OF LAKE COUNTY, FLORIDA, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The Florida Supreme Court reversed an injunction decree that restrained a sheriff from collecting a tax warrant, holding that the Comptroller of the State of Florida was a necessary and indispensable party to the injunction proceeding and could not be bound by a decree entered without notice or participation.
The Comptroller is a necessary and indispensable party to any proceeding to enjoin collection of a tax warrant that he issued. The Comptroller may move to vacate a decree entered without notice or opportunity to be heard, and the trial court erred in denying such motion.
“There can be no doubt that the Comptroller is a necessary and indispensable party to any proceeding to enjoin the collection of the tax here involved.”
Establishes the fundamental principle that the Comptroller must be a party to any injunction proceeding affecting tax warrant collection.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceL.S. Hood filed suit to enjoin Sheriff McCall from levying execution on a tax warrant issued under Florida law. The Comptroller, who issued the tax wa…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Motion To Vacate Decree cases and more on FLexlaw
PER CURIAM.
This is an appeal by the appellant, as Comptroller of the State of Florida, from an order denying his motion to vacate and set aside a decree previously entered by the trial court under the following circumstances :
L. S. Hood, plaintiff below and one of the appellees here, filed suit to enjoin the appel-lee McCall, as Sheriff of Lake County, Florida, from levying on an execution issued upon a tax warrant filed with the Clerk of the Circuit Court of Lake County, Florida, under Sec. 212.15, Fla.Stat.1955, F.S.A. The Comptroller of the State of Florida, appellant here, was not made a party to the injunction proceeding. No defense being made to the suit by the appel-lee McCall, a decree pro confesso was entered against him and, based thereon, a final decree was thereafter entered perpetually enjoining the Sheriff from levying execution upon the tax warrant.
Some six months later, the appellant filed in the cause a motion to vacate an4 set aside the final decree, alleging, among .others, that the Comptroller was a necessary party to the injunction proceeding and that neither he nor his predecessor in office had notice of the proceeding until months after the entry of the final decree. The lower court denied the motion and this appeal followed.
There can be no doubt that the. Comptroller is a necessary and indispensable party to any proceeding to enjoin the collection of the tax here involved. When the tax warrant is issued by him and filed and recorded in the office of the Clerk of the Circuit Court of the county in which the tax debtor has property, it becomes a lien upon the taxpayer’s property “in the same manner as a judgment duly docketed and recorded in .the office of such clerk of the circuit court.” Sec. 212.15(3), Fla.Stat. 1955, F.S.A. Execution is issued thereon “the same as on a judgment”. Ibid. While there is some authority to the contrary, this court follows the majority of courts 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. See Freeman on Judgments (5th Ed.) Sec. 260; cf. Capers v. Lee, Fla.1957, 91 So. 2d 337; Mast v. Baker, supra; Zipperle v. Smith, Okl.1956, 304 P. 2d 310. It was not necessary under the circumstances here present for the appellant to state in his motion to vacate ¿ defense to the original decree.
For the reasons stated, the order appealed from should be and it is hereby reversed and the cause remanded for further proceedings not inconsistent herewith.
Reversed and remanded.
TERRELL, C. J., and ROBERTS, DREW, THORNAL and' O’CONNELL, JJ-, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Green v. Hood, 120 So. 2d 223 (Fla. 2d DCA 1960)…appeal, the Supreme Court of Florida reversed the chancellor’s ruling, holding that the comptroller was a necessary and indispensable party and remanding the cause for further proceedings not inconsistent with its opinion. Green v. Hood, Fla. 1957, 98 So. 2d 488. An amendment was then filed by Hood, bringing in the comptroller as a party defendant. The amendment was served on the comptroller, who thereupon moved to dismiss the case for want of jurisdiction since he had not been served with process nor with…
-
Holiday Ranch, Inc. v. Roudabush, 171 So. 2d 558 (Fla. 2d DCA 1965)…ty,” the trial court was affirmed in denying the motion to dismiss. Either an original suit or a motion to set aside, as here, are proper remedies to test the validity of service of process under such circumstances. Green v. Hood & McCall, Fla.1957, 98 So. 2d 488. “The true purpose of the entry of a default is to speed the cause thereby preventing a dilatory or procrastinating defendant from impeding the plaintiff in the establishment of his claim. It is not procedure intended to furnish an advantage to the…
Authorities Cited
- Capers v. LEE, 91 So. 2d 337 (Fla. 1956)
- Mast v. Baker, 69 Fla. 585 (Fla. 1915)