BERLANTI CONSTRUCTION CO., INC., PETITIONER,

v.

REPUBLIC OF CUBA, RESPONDENT; BERLANTI CONSTRUCTION CO., INC., APPELLANT, V. REPUBLIC OF CUBA, APPELLEE (TWO CASES)

Fla. 3d DCA | 1962-10-09

Nos. 62-124 to 62-126

Before HORTON, BARKDULL and HENDRY, JJ.

145 So. 2d 256 Florida District Court of Appeal, Third District (1962) Positive Treatment

Cited by 7 cases

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Holding

The trial court erred in vacating a quasi in rem judgment and staying execution when jurisdiction was initially established by attachment, even if the attached property was later removed from the court's control.

Facts & Procedural History

Appellant obtained a quasi in rem judgment against appellee after attaching goods, as personal service was impossible. Later, appellant attempted to l…

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Topics

Levy Of Execution Special Appearance General Appearance Quasi In Rem Jurisdiction

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Opinion of the Court

HORTON, Judge.

These cases were consolidated for purposes of oral argument since all sought review of the same order. By order of this court, the briefs filed in cases #62-124 and #62-125 have been considered as briefs in case #62-126, and the appendix filed in case #62-124 has been considered as the certified transcript of record applicable to all three cases.

Appellant, plaintiff below, seeks review of an order vacating a final quasi in rem judgment entered in its behalf, permanently staying execution thereon, and quashing levy on certain of appellee’s property.

Appellant brought suit seeking a personal judgment against the appellee but was unable to effect personal service. Appellee’s goods were attached and a final judgment was entered in favor of the appellant pursuant to such jurisdiction as the attachment conferred upon the court. Appellee did not appear to contest the case. Some five months later, at a time when the goods originally attached were no longer under attachment 1 , the appellant sought to levy on goods of the appellee which had not been attached at the commencement of the action. At this juncture, the appellee entered the action for the first time by filing a special appearance to contest jurisdiction, and in conjunction therewith, motions to (a) postpone the sale under the levy of execution 2; (b) vacate an order granting shortened time for sale; and (c) stay execution, quash levy and vacate judgment3. After *258hearing, the court entered the order appealed, having found that it had never acquired personal jurisdiction of the appel-lee and that the property originally attached was no longer under its jurisdiction and control.

Jurisdiction to enter a binding judgment in an action in rem is incidental to and dependent upon the court’s having jurisdiction and control over the res or property involved' at the commencement of the action4, and any such judgment may only he satisfied by execution on such property5. It has no binding effect on persons without the territorial jurisdiction of the court who have not been brought within its jurisdiction by personal or constructive service or a voluntary general appearance 6. Nor does it affect any property, whether without or within the territorial jurisdiction of the court, other than that property brought within the court’s jurisdiction by a valid attachment or seizure at or before the commencement of the action 7. If the court has control of the res at the commencement of the action, a subsequent accidental, fraudulent or improper removal of the res from its control may render its judgment hollow, and as a practical matter, unenforceable, but it will not destroy jurisdiction or the validity of the judgment8.

Applying the principles enunciated above to the case at bar, we hold that the trial court erred in vacating the appellant’s judgment and permanently staying execution thereon. However, it did not err in quashing levy on the property in question. The trial court had jurisdiction to enter the judgment, since at the commencement ox [lie action the res in question was under valid attachment. The fact that subsequent events placed the res beyond the court’s control did not destroy jurisdiction or the validity of the judgment. Further, the appellant may still have ¡execution on its judgment by levying on the property originally under attachment should it in the future again come within the territorial jurisdiction of the court. However, appellant may not seek execution by levy on any other property of the defendant.

We have considered the appellant’s contention that the appellee has made what amounts to a general appearance in this action and find it to be without merit. The appellee asked nothing of the court except that it determine whether or not it had jurisdiction under the law.9

Accordingly, the order appealed is reversed insofar as it vacated the appellant’s judgment and permanently stayed execution thereon, and affirmed insofar as it quashes levy on the property in question.

Affirmed in part and reversed in part.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

Dov Gelkop v. Gelkop, 384 So. 2d 195 (Fla. 3d DCA 1980)

…ove real and personal property provisions of the final judgment because (a) the apartment and necklace in question were located in Israel and thus were outside the territorial jurisdiction of the court; Berlanti Construction Co. v. Republic of Cuba, 145 So. 2d 256 (Fla. 3d DCA 1962); and (b) the said apartment, necklace, and 1976 Peugeot automobile were not described, as required by law, in the marriage dissolution petition and the notice of publication sent to the husband. Lahr v. Lahr, 337 So. 2d 837 (Fla.…
Gen. Elec. Cap. Corp. v. Advance Petroleum, Inc., 660 So. 2d 1139 (Fla. 3d DCA 1995)

…s in rem or quasi in rem jurisdictional domain. Fall; see, e.g., Publix Super Markets, Inc. v. Cheesbro Roofing, Inc., 502 So. 2d 484 (Fla. 5th DCA 1987); Gelkop v. Gelkop, 384 So. 2d 195 (Fla. 3d DCA 1980); Berlanti Constr. Co. v. Republic of Cuba, 145 So. 2d 256 (Fla. 3d DCA 1962), cert. denied, 152 So. 2d 170 (Fla.1963). As a consequence, the order of foreclosure, naturally, may not be enforced until the aircraft is returned to Dade County. In conclusion, we affirm the orders under review in all respects,…
Matz v. O'Connell, 155 So. 2d 705 (Fla. 2d DCA 1963)

…., Miller v. Griffin, 1930, 99 Fla. 976, 128 So. 416; Newton v. Bryan, 1940, 142 Fla. 14, 194 So. 282; Harris & Company Advertising, Inc. v. Republic of Cuba, Fla.App.1961, 127 So. 2d 687; Berlanti Construction Co. v. Republic of Cuba, Fla.App.1962, 145 So. 2d 256. The question as to the force and effect of the statute and decisions with respect to the conclusiveness of the amount realized at the sale of the property, as constituting the fair value thereof, is analogous to the question of the jurisdiction an…

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Authorities Cited

Pennoyer v. Neff, 95 U.S. 714 (U.S. 1877)
Cooper v. Reynolds, 10 Wall. 308 (U.S. 1870)
Rorick v. Foster, 101 Fla. 4 (Fla. 1931)
Pennington v. Fourth Nat'l Bank of Cincinnati, 243 U.S. 269 (U.S. 1917)
The Rio Grande, 23 Wall. 458 (U.S. 1874)
Harris & Co. Advertising, Inc. v. Republic OF Cuba, 127 So. 2d 687 (Fla. 3d DCA 1961)
Bankruptcy v. Commercial Inv. Tr., 103 Fla. 609 (Fla. 1931)
Nat'l Malleable & Steel Castings Co. v. Goodlet, 195 F.2d 8 (7th Cir. 1952)

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