Florida Guaranteed Securities v. McAllister, 728.

• Decision Date: 04 March 1931
• Docket Number: No. 728.,728.
• Citation: 47 F.2d 762
• Parties: FLORIDA GUARANTEED SECURITIES, Inc., v. McALLISTER et al.
• Court: U.S. District Court — Southern District of Florida

47 F.2d 762 (1931)

FLORIDA GUARANTEED SECURITIES, Inc., v. McALLISTER et al.

No. 728.

District Court, S. D. Florida.

March 4, 1931.

Knight, Pace & Holt, of Miami, Fla., for plaintiff.

Kunkel & White, of Miami, Fla., for defendants.

RITTER, District Judge.

This matter comes on for hearing upon a motion to dismiss the petition for an order nisi directed to Edward P. White and Ruth White, his wife, to show cause why certain real estate possessed by them should not be subjected under execution to the payment of a final judgment rendered in this cause on behalf of the complainant.

Examination and discovery have been had under proceedings supplementary to execution, wherein it is claimed to have been shown that certain real estate owned by the defendant E. C. McAllister, a widow, was by her conveyed to her attorney, Edward P. White, and Ruth White, his wife, without consideration, and that the said Whites are now in possession of the premises, occupying the dwelling house thereon, which is furnished with furnishings belonging to the said E. C. McAllister.

The petition is opposed by counsel for E. C. McAllister on the ground that this court has no jurisdiction to issue any such order and proceed further with proceedings supplementary in reference to the real estate; that any further proceedings must be by an independent suit in the way of a creditors' bill or an action to set aside the conveyance; that the statutes of the state of Florida do not give the court the right to proceed to a trial of the issue involved in reference to the fraudulent transfer of the real estate aforesaid. This involves a construction of sections 4540-4549 of the Compiled General Laws of Florida 1927, being article 5, referring to proceedings supplementary to execution.

Section 727, title 28, USCA, provides:

"The party recovering a judgment in any common-law cause in any district court, shall be entitled to similar remedies upon the same, by execution or otherwise, to reach the property of the judgment debtor, as are provided in like causes by the laws of the State in which such court is held, or by any such laws which may subsequently be enacted and adopted by general rules of such district court; and such courts may, from time to time, by general rules, adopt such State laws as may be in force in such State in relation to remedies upon judgments, as aforesaid, by execution or otherwise."

This is a foreclosure case, and there was entered a deficiency judgment in the case for $8,594.03. Execution was had thereon, and a return of "no property found" was made. Accordingly, supplementary proceedings were had. The entry of the judgment and the proceedings under execution are covered by Rules 8 and 10 of the Equity Rules of this court (28 USCA § 723). The statutes of Florida, as heretofore announced, therefore are available to the judgment creditor in this court and procedure under the state law may be had. An unconditional judgment in an equity case is within the scope of section 727, title 28, USCA. Du Bois v. Seymour (C. C. A.) 152 F. 600, 11 Ann. Cas. 656. It is fundamental doctrine that a court which is competent to and does render a judgment is competent to enforce it.

Coming now to an examination of the Florida statutes, we find sections 4540 and 4541 providing procedure after an unsatisfied return on an execution to obtain an examination of a defendant or defendants, which is in effect a proceeding in discovery of property.

Section 4542 defines the scope of the examination, and declares that it "shall be comprehensive and shall cover any and all matters and things pertaining to the business and financial interests of the defendant which might tend to show what property the defendant has, his rights in same, and the location of same. Any and all testimony may be admissible which may tend directly or indirectly to aid in the satisfaction of any execution in whole or in part." This makes no distinction between personal property and real estate. The evidence may be offered to disclose the interest of a defendant in both or either.

Section 4543 provides:

"The judge may order any property of the judgment debtor not exempt from execution, in the hands of either himself or any other person or due to the judgment debtor, to be applied toward the satisfaction of the judgment debt."

Counsel for the defendants contend that this statute is limited to personal property because of the words "in the hands of"; but this is too narrow a construction. These words mean, in effect, "in the possession of," and as we shall hereafter see, the statute is to be given a liberal construction. I think these words import property in the possession of the defendant or any other person, including both real and personal property.

Sections 4544 and 4545 refer specifically to personal property, and provide that, upon the disclosure by the testimony before a commissioner that the same are in the possession of the defendant or any other person, the court may order the same to be taken possession of by the sheriff under execution, and thereafter "any person who may be aggrieved thereby may file claim and bond as provided in other cases where third persons claim property taken under levy." Section 4545. This procedure in reference to personal property is certainly proper because such property may be wasted, lost, or concealed, and therefore the trial of title concerning the same is fixed after possession is taken by the sheriff. All parties in interest have their day in court therefor, fixed by the statute, and the court...