Flagship State Bank of Jacksonville v. Carantzas

• Decision Date: 16 December 1977
• Docket Number: No. CC-470,CC-470
• Citation: Flagship State Bank of Jacksonville v. Carantzas, 352 So.2d 1259 (Fla. App. 1977)
• Parties: FLAGSHIP STATE BANK OF JACKSONVILLE, a Banking Corporation, Appellant, v. Costa CARANTZAS, Appellee.
• Court: Florida District Court of Appeals

Page 1259

352 So.2d 1259

FLAGSHIP STATE BANK OF JACKSONVILLE, a Banking Corporation, Appellant, v. Costa CARANTZAS, Appellee.

No. CC-470.

District Court of Appeal of Florida, First District.

Dec. 16, 1977.

Rehearing Denied Jan. 5, 1978.

Calvin E. Hayden, of Smith & Hayden, Jacksonville, for appellant.

John Paul Howard, Thomas R. Welch, Jacksonville, for appellee.

ERVIN, Judge.

Flagship Bank appeals a final judgment which (1) granted a motion to dismiss the Bank's levy upon certain personal property in the possession of the Sheriff of Duval County which was held subject to a prior successful bid by Carantzas, and (2) ratified the bill of sale from the sheriff to Carantzas. We reverse as to that portion of the judgment ratifying the bill of sale.

In the summer of 1973, Flagship obtained two final judgments against the judgment debtor, William B. Lanier, Jr. One judgment was in the amount of $15,792.16, the other in the amount of $8,287.07 with costs of $40.00. Writs of execution were indexed and docketed with the Sheriff of Duval County. Two years later, Carantzas recovered from the same judgment debtor a deficiency judgment of $90,566.62. Carantzas' execution was also docketed and indexed with the sheriff. Carantzas delivered to the sheriff instructions for levy on personal property owned by the debtor and the sheriff published notice of sale stating that the property levied upon would be sold, subject to all prior liens, to the highest and best bidder for cash. The notice referred to all executions which had been docketed with the sheriff, including Flagship's two prior executions.

Notwithstanding the published notification that the property would be subject to cash bids, at the sale held on September 11 1975, Carantzas successfully bid $31,262.23; of that amount $30,000.00 was in the form of a credit against the outstanding $90,566.62 judgment, the remainder of the bid was in cash to cover the sheriff's costs. The attorney for Flagship appeared at the sale but made no bid. Neither did he then voice any objection to the method of sale, although he had done so prior to the sale and had advised the sheriff's deputy the sale should be held on each execution separately. Since Flagship's two executions remained outstanding, Flagship later gave the sheriff instructions for levy upon the same property which Carantzas had purchased at the execution sale. The property was still in the possession of the sheriff and had not been surrendered to Carantzas. Carantzas then filed a motion in the Circuit Court to dismiss the levy on the ground the property had already been sold, resulting in the extinguishment of Flagship's lien on the property.

Flagship initially argues that the lower court lacked jurisdiction over it because Carantzas instituted no separate proceeding by filing a complaint seeking to determine the validity of the respective liens. Nevertheless the court still had jurisdiction over the res, the goods in custody of the sheriff, and could properly enter a judgment confirming the sale. Jurisdiction of a court over proceedings in rem is acquired by the filing of a complaint with exhibits having reference to the property which may be subjected to the processes of the court. Gribbel v. Henderson, 151 Fla. 712, 10 So.2d 734 (1942). Such an action requires seizure or its equivalent of property within the jurisdiction of the court and the giving of reasonable and fair notice of the action against described property and of the date and place of the hearing. Here Flagship had constructive notice of the execution sale, was advised prior to the sale that the sale would be held as to all three executions at the same time and not separately.

The court properly dismissed Flagship's levy upon property which at the time of the attempted levy was within the custody of the sheriff. Money or property which has come into the hands of an officer of the court by virtue of legal process is regarded as in the custody of the law and once levied upon remains in such custody and is not liable to be taken by another execution. Adams v. Burns, 126 Fla. 685, 172 So. 75 (1936); Young v. Stoutamire, 131 Fla. 535, 179 So. 797 (1938).

Nevertheless the court erred in ratifying the bill of sale to Carantzas. The method in which the execution sale was conducted was clearly irregular. As to personal property, an execution issued on a judgment operates as a lien on the property of the defendant in execution from the time such writ is delivered to the sheriff. Goodyear Tire & Rubber Co. v. Daniell, 72 Fla. 489, 73 So. 592 (1916). Moreover priority between the lien of an execution and other claims on the same property is generally governed by considerations as to priority in time, McKeown v. Coogler, 18 Fla. 866 (1882), and if two writs of execution are delivered to the officer, he should execute them in the order in which they are delivered. 13 Fla.Jur., Executions, section 38 (1957).

Love, Sheriff v. Williams, 4 Fla. 126 (1851), held if an officer levies and sells personal property by virtue of a junior writ, the proceeds of the sale may be returned to the junior creditor who was the successful bidder at the sale and may not be attached by the senior creditor. In Love, Williams, the senior creditor, obtained a judgment against a judgment debtor in 1842, and in 1844 a writ of execution was delivered to the sheriff. On November 12, 1849, the courthouse was destroyed by fire and with it all the records of the sheriff's office. On November 14, 1849, Richard H. Wilson, the junior creditor, recovered judgment against the same judgment debtor and later delivered a writ of execution to the sheriff. The sheriff levied on certain property of the judgment debtor, and it was later sold to Wilson. Following the sale, Williams obtained a rule for the sheriff to show cause why he should not pay over to him the amount received from the execution sale. The sheriff responded he did not know...