City of Lakeland v. Chase Nat. Co.

• Decision Date: 09 December 1947
• Citation: 159 Fla. 783,32 So.2d 833
• Parties: CITY OF LAKELAND v. CHASE NAT. CO. et al.
• Court: Florida Supreme Court

32 So.2d 833

159 Fla. 783

CITY OF LAKELAND v. CHASE NAT. CO. et al.

Florida Supreme Court

December 9, 1947

[Copyrighted Material Omitted]

Appeal from Circuit Court, Polk County; Don Register Judge.

J. C Rogers and H. N. Casebier, both of Lakeland, for appellants.

Carver & Langston, of Lakeland, for appellees.

BARNS, Justice.

By an original bill the City of Lakeland on January 28, 1943, brought foreclosure proceedings under Chapter 173, F.S.A. hereinafter referred to as the 'foreclosure suit.' This 'foreclosure suit' was in rem for the foreclosure of many thousands of tax and special improvement liens against many hundred different pieces of property. Such procedure has been authorized by Section 173.04, F.S.A. The liens were 'several' in nature and not common to all the property. They were as separate and distinct, one from the other, as would be as many different mortgages on as much different property.

Process by publication was issued by the Clerk and a final decree was rendered against many hundreds of lots of Lakeland on January 13, 1944, for the enforcement of liens totalling more than $377,000.

A master was appointed by the final decree to make sale of the property and on March 9, 1944, he filed his report of sale reciting that the excess of the proceeds over plaintiffs' lien had been paid into the registry of court which payment into the registry of the court is not shown to have been made.

The appellees-plaintiffs, Chase National Company, R. H Omohundro, and Abbott and Son, Inc., et al., brought this suit 'in their own behalf and in behalf of each and every person too numerous to mention or list herein, interested or claiming any interest either as owner or lienor in or upon any of the property' involved in the foreclosure suit against the City of Lakeland, Ronald A. Julian as Special Master in Chancery, 'and as the representatives of each and every person claiming an interest in any of the property hereinafter described as an outgrowth of the rem foreclosure.'

The (intervening) defendants, Nancy V. Marler, C. P. Selph, Beulah Selph, R. B. Hoddock and Haden Mayes and his wife, hereinafter referred to as 'Marler et al.,' answered for themselves and purported to answer for 'any and all other persons and corporations who were purchasers of a portion of the real estate at the Special Master's sale, described and referred to in the plaintiffs' Bill of Complaint, and their successors in title,' and stated 'that all of these defendants were purchasers, or are successors in title to the purchasers, at the said Special Master's sale of the in rem foreclosure proceedings. * * * A portion of these defendants, being grantees of the purchasers of the said sale, and a portion of these defendants are grantees of the grantees of the purchasers at the said sale.'

The defendants, 'Lakeland' and Ronald A. Julian as Special Master answered for themselves and purported to answer 'as representatives of each and every person claiming an interest in such property as described in the Complainant's Bill of Complaint, except such property as was sold by said Special Master to purchasers at said Special Master's sale on January 31, 1944.'

No process was issued against any members of the defendant class except the named defendants.

The bill in this suit partakes of a bill of review and one to impeach a decree for fraud (see Wilson et al. v. Schaefer, 107 Tenn. 300, 64 S.W. 208, for discussion of such bill) which will hereinafter be referred to as the 'bill of review'.

At the time of initial consideration of this appeal the record failed to contain proceedings had below respecting the prosecution by the plaintiffs of the suit as a 'class suit' and the defense of the suit as a 'class suit.'

It has now been made to appear that after the filing of the 'bill of review' the attorneys for the plaintiffs petitioned the Chancellor for an order authorizing the plaintiffs to prosecute the bill on behalf of the owners and lienors as of the time of the filing of the foreclosure suit and likewise for an order authorizing 'Lakeland' and the Special Master to defend the suit on behalf of all claiming an interest in the property as an outgrowth of the foreclosure suit.

Upon the foregoing petition the Chancellor made a finding of fact and entered an order granting the petition and adjudicated that all the members of the plaintiff and defendant classes should be bound by the final decree and in said order very properly provided that interested parties 'defendant' might intervene. It is supposed that he would have done as well for parties having an interest in the prosecuting if the occasion had been presented.

The Chancellor at final hearing of the 'bill of review' vacated and annulled the final decree in 'foreclosure suit' and dismissed that bill without prejudice. Whereupon the defendants to the bill of review appealed.

Appellant's assignments of error are:

'(1) The Court erred in denying the defendants' Motion to Dismiss the complainants' Bill of Complaint upon the ground that there was no equity in the bill.

'(2) The Court erred in rendering the final decree herein for the following reasons:

'(a) Because the record in this case shows that the Bill of Complaint was filed after the lapse of time provided by law for the review of the Final Decree in the former suit referred to herein.

'(b) Because the record discloses that the only property and parties now affected by this suit are those properties which the defendants purchased at the Special Master's Sale in the original suit described herein, without any notice of any irregularities that were not a matter of record, for which this suit should have been brought before the time for appeal had expired.'

The basis for relief in the 'bill of review' is fraud and an original bill in the nature of a bill of review is allowed largely in the exercise of sound judicial discretion and is not limited to the time for taking an appeal. See Winter Haven v. Lake Elbert Citrus Fruit Company, 122 Fla. 422, 165 So. 360.

Warning Notice (before suit commenced). Section 173.04, F.S.A., ^[1] provides that not less than thirty days before the commencement of the suit that:

(1) Written notice of intention to file the suit shall be given by registered mail to the last known address of a holder of the record title and lien holders except judgment liens of each tract;

(2) That such notice shall (a) briefly describe the particular lot or parcel of land; (b) shall state the amount of the tax certificate or special assessment liens sought to be enforced; (c) and shall warn that unless paid a suit to enforce same will be filed on or after a stated day.

The statute further provides that the city's attorney shall make a certificate to the effect that the foregoing notice has been given and that it shall be attached to the bill.

Relative to the 'foreclosure suit' no such warning notice was given but in lieu thereof, the city directed that a newspaper notice be given. Neither did the city's attorney make the certificate that the statutory warning notice was given because it was not given.

Constructive service of Process notice (after commencement). Section 173.04, F.S.A., ^[2] requires that plaintiff's counsel shall make diligent inquiry as to the address of the record title and lien holders; that such counsel shall advise the clerk in respect thereto; and the clerk shall thereupon mail by registered mail to such title and lien holders a copy of the consturctive service of process notice as published, advising of the institution of the suit, the lands proceeded against, and the amount of liens sought to be enforced against the respective lots or parcels of land.

The plaintiffs' attorney in the 'foreclosure suits' did not furnish the Clerk of the Court with the address of any title or lien holder and the Clerk did not mail to the title or lien holders any notice of process by publication and it has been made to appear that such was intentionally omitted on behalf of the City acting through their attorney in the foreclosure suit and plaintiffs in the 'bill of review' had no actual notice of the pendency of said foreclosure suit. It is shown that the attorney for the plaintiff affirmatively directed the Clerk of the Circuit Court not to send the notice to owners and lienors as directed by the statute.

The proceedings had under the circumstances above recited and in disregard of the plain requirements of the statutes were a fraud on the right of the parties even though not jurisdictional. ^[3]

In Reina v. Hope, Fla., 30 So.2d 172, it was urged by certain minors that their property was sold to the City at its foreclosure sale in proceedings under the prototype of Chapter 173.04, F.S.A., and thereafter by it conveyed to Hope and that because the Clerk sent the notice to the guardian instead of to the minors that the foreclosure decree was without jurisdiction and we held the prescription for sending notice by the Clerk was not jurisdictional and such minors had not been denied 'due process' under such circumstances. The prescription of a statute in one respect may be directory and in another respect mandatory.

The City being the plainiff in the foreclosure suit and the purchaser at foreclosure sale does not occupy the status of a bona fide purchaser for value without notice.

The plaintiffs purport to bring their 'bill of review' as a class suit against the City and the master as representative of 'each and every person claiming an interest in such property as described' in the bill 'except such property as was sold by special master to purchasers at said special master's sale on January 31, 1944.' The defendants 'Marler et al.' failed to describe in their answer the specific...