Baars v. Creary
| Decision Date | 21 June 1887 |
| Citation | 2 So. 662,23 Fla. 311 |
| Parties | BAARS v. CREARY and others. |
| Court | Florida Supreme Court |
Appeal from First judicial circuit, Escambia county.
Syllabus by the Court
The purpose of the claim statute is to provide a summary remedy for a stranger to an execution (taken as one of the writs to which it applies) who claims title to property levied on, to have the question of the superiority of his alleged title over the right of the plaintiff in execution to subject the chattel to the satisfaction of his execution, settled, and recover possession of the charttel if his title is found superior.
A claimant, under the claim statute, of property upon which an execution against another person has been levied, cannot upon the trial of the claim issue, object to the illegality or irregularity of the execution. These are questions for the defendant in execution to raise by a direct proceeding, and the claim statute was never intended to give a remedy against illegal or irregular executions.
The 'right of property' or issue to be tried under the claim statute is an issue of superiority, as between the right of the plaintiff in execution to subject the chattel to the satisfaction of his writ and the claimant's title, as against such right, or, in other words, an issue of the liability of the property to the plaintiff's execution as against the claimant's title, if he has any. It is not a mere question as to whom the legal title and possession of the chattel were in at the time of the levy of the execution.
The proceedings for the enforcement of liens on buildings, mills machinery, etc., and on steam-boats and vessels in their home ports, under the act of 1868, as amended in 1887, ,) are at law.
Suit was brought against D. & R. Piaggio, to enforce their claim and lien for labor and materials furnished for the repair of the steam tug-boat Jombo, and judgment was rendered reciting that 'evidence and lien proof' was introduced, and adjudging that the plaintiffs have and recover of and from said defendants $266.70; and it was also 'adjudged and directed by the court that the steam tug-boat Jumbo be sold for the satisfaction of the lien of 'the plaintiffs,' to satisfy the said amount of two hundred and sixty-six dollars and seventy cents, and the cost of this proceeding.' Held, that the judgment sufficiently ascertained and declared a lien.
An execution issued on this judgment directed to all and singular the sheriffs of the state, and commanding 'that of the goods and chattels, lands and tenements, of D. & R Piaggio, to be made out of the sale of the steam tug-boat Jumbo,' they cause to be made the said sum, which said 'W. F. & J. F. Creary lately, on December 19, 1884, (the date of the judgment,) recovered.' It properly describes the court, and is otherwise like the ordinary fi. fa., under the statutes of this state. Held that, upon a claim proceeding instituted by Baars to recover the said tug-boat Jumbo, he could not question the sufficiency of such execution to enforce the lien adjudged against said tug-boat.
COUNSEL J. C. Avery, for appellant.
C. B. Parkhill, for appellees.
The appellees performed labor and furnished materials for the repair of the steam tug-boat Jumbo, and filed, within the time prescribed by the statute, in the office of the clerk of the circuit court of Escambia county, notice of their intention to hold a lien on the steam tug-boat for the amount of their claim. Pensacola, in said county, was, and so far as we are informed continued to be, the vessel's home port. Appellees brought suit, under the statute, against D. & R. Piaggio, to enforce their claim and lien, and judgment was rendered on December 19, 1884, that appellees have and recover of said D. & R. Piaggio, late copartners, $266.70, and costs, and that the said 'steam tug-boat Jumbo be sold for the satisfaction of the lien of W. F. & J. E. Creary, to satisfy the said' amount and costs. The appellant purchased the tug-boat of the Messrs. Piaggio, after the institution of the said suit by appellees, and was in possession of her at the time the execution was levied upon her. This execution, issued April 29, 1885, is addressed to all and singular the sheriffs of the state, and commands 'that of the goods and chattels, lands and tenements, of D. & R. Piaggio, late copartners, to be made out of the sale of the steam--tug Jumbo,' they cause to be made the said sum, 'which W. F. & J. E. Creary lately, on December 19, 1884, recovered' in said Escambia circuit court; and is otherwise like our ordinary fi. fa. This writ was levied by the sheriff upon the tug-boat on the fifteenth of May, 1885, and appellant interposed a 'claim' under our practice, and the sheriff delivered the property to him, and returned the writ and claim proceedings to the circuit court, as is required in such cases; and, a jury having been waived, the cause was tried before the judge, and judgment rendered at the spring term, 1886. This judgment finds that ...
To continue reading
Request your trial
-
U.S. v. West Indies Transport Co., Inc., Criminal Action No. 93-195 (D. V.I. 7/19/1999), Criminal Action No. 93-195.
...title to the property is superior to the judgment creditor's right to execute judgment on the property. See, e.g., Baars v. Creary, 23 Fla. 311, 314, 2 So. 662, 663 (stating that "[t]he purpose of the [Florida] claim statute is to provide a summary remedy for a stranger to an execution, who......
-
Volusia County Bank v. Bigelow
...jury as to the issues, informed them that J. E. Bigelow was a party to the suit, and was misleading. It was said in the case of Baars v. Creary, 23 Fla. 311, text, 315, 2 So. 662, 664, that 'the right of which the jury is sworn to try is an issue of superiority as between the right of the p......
-
Wheeler v. Baars
...had a claim against the tug, which, since said sale to plaintiff, the circuit court of Escambia county and the supreme court of Florida (2 So. 662) have adjudged to be valid lien upon said tug for materials and repairs amounting to $246.02, and plaintiff was compelled to pay the full amount......
-
Roos v. Lewyn
...of such process, who is a stranger, cannot question the regularity of the writ, judgment, or proceeding upon which it is based. Baars v. Creary, 23 Fla. 311, 2 South. 429; Price v. Sanchez, 8 Fla. 136; Moseley v. Edwards, 2 Fla. 663; Fryer v. Dennis, 2 Ala. 144; Perkins v. Mayfield, 5 Port.......