Clements v. Roberts
Decision Date | 03 November 1942 |
Citation | 10 So.2d 425,151 Fla. 669 |
Parties | CLEMENTS, Tax Collector of Polk County, et al. v. ROBERTS. |
Court | Florida Supreme Court |
Rehearing Denied Dec. 1, 1942.
Carver & Langston, of Lakeland, for petitioner D. H Sloan.
J. Tom Watson, Atty. Gen., Lawrence A. Truett, Asst. Atty. Gen., and Tiffany Turnbull, Sp. Asst. Atty. Gen., for petitioner J. M Lee.
John S Edwards, of Lakeland, for respondent.
This case is before the court on petition for an interlocutory writ of certiorari for the purpose of quashing two orders entered by the Circuit Court of Polk County, Florida, dated April 23, 1942 overruling and denying (a) a motion to strike designated portions of the amended bill of complaint and (b) motion to dismiss filed by the defendants below. Four questions are posed for a decision of this Court by counsel for petitioners, while counsel for respondent poses a single question and suggests amendments or modification of the questions posed by counsel for petitioners.
Counsel for petitioners contend that the following language appearing in the amended bill of complaint should be deleted or expunged viz.:
It is here contended that the challenged portions, supra, of the amended bill are irrelevant, immaterial, contrary to law, and tend to submit issued that are vague, indefinite, uncertain, and which can in no manner influence the issues in controversy.
Sections 22 and 23 of the Chancery Act, Chapter 14658, Acts of 1931, Laws of Florida, authorized Chancery Courts to make orders or decisions based on motions, or upon their own initiative, striking from pleadings in suits pending before them matters not relevant, pertinent or necessary for a decision of the controversy, but the pendency of a motion to strike does not stay the progress of the cause unless so ordered by the Chancellor. See Section 24 of the Chancery Act, supra.
The challenged allegations supra of the amended bill to the effect that payment under protest of the 1939 taxes on 1300 acres of the 5200 acres for the reason that the valuation on the 1300 acres is excessive and the court should hear evidence and decree the amount of the alleged excessive valuation so paid on the 1939 tax certificates; that the excess amount thereof be applied by the terms of an appropriate decree on taxes now due and unpaid on the remaining 3900 acres of the original 5200 when the correct valuation thereon is fixed by a court decree. It is asserted that payment of the 1939 tax certificates was made under protest and was involuntary. We can not agree to this contention. It is admitted that the tax certificates were paid on the 1300 acres so that the timber situated on the land could be sold. The allegations of the amended bill, supra, are legally insufficient to support a decree for the recovery of the amount of the 1939 tax certificates voluntarily paid. See Seaboard Air Line R. Co. v. Allen, 82 Fla. 191, 89 So. 555; St. Johns Electric Co. v. St. Augustine, 81 Fla. 588, 88 So. 387.
The right of a taxpayer to recover taxes previously paid was considered by this Court in the recent case of North Miami v. Seaway Corporation, Fla., 9 So.2d 705, 707, opinion filed August 4, 1942, but not yet reported [in State Reports]. We in part said:
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Sheckler v. Monroe Cnty.
...of mootness.2 "Payment to avoid onerous penalties is generally considered [to be] involuntary or compulsory." Clements v. Roberts, 151 Fla. 669, 10 So. 2d 425, 427 (1942) ; see also North Miami v. Seaway Corp., 151 Fla. 301, 9 So. 2d 705, 706 (1942) (holding that payment of an illegal tax "......
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City of Miami Beach v. Sterin
...that all tax payments are presumed to be voluntary until the contrary is made to appear. This rule was reiterated in Clements v. Roberts, 151 Fla. 669, 10 So.2d 425 (1942). See also Annot., 64 A.L.R. 9, 64 The record is barren of any suggestion of involuntary payment or protest by Sterin. T......
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