Green v. Hood, 1229

• Decision Date: 04 May 1960
• Docket Number: No. 1229,1229
• Citation: 120 So.2d 223
• Parties: Ray E. GREEN, Comptroller of the State of Florida, Appellant, v. L. S. HOOD, Appellee.
• Court: Florida District Court of Appeals

Page 223

120 So.2d 223

Ray E. GREEN, Comptroller of the State of Florida, Appellant, v. L. S. HOOD, Appellee.

No. 1229.

District Court of Appeal of Florida, Second District.

May 4, 1960.

Richard W. Ervin, Atty. Gen., Ralph M. McLane, and Joseph V. Barrs, Assts. Atty. Gen., for appellant.

Walter Warren, Leesburg, for appellee.

KANNER, Judge.

L. S. Hood, appellee, brought suit for an injunction against the Lake County sheriff to prevent his executing the collection of certain delinquent sales taxes due to be paid the state comptroller. The chancellor entered a decree pro confesso and subsequently a final decree against the sheriff, who interposed no defense. The comptroller moved to vacate the final decree on the ground that he was a necessary party. This motion was denied; and on appeal, the Supreme Court of Florida reversed the chancellor's ruling, holding that the comptroller was a necessary and indispensable party and remanding the cause for further proceedings not inconsistent with its opinion. Green v. Hood, Fla.1957, 98 So.2d 488.

An amendment was then filed by Hood, bringing in the comptroller as a party defendant. The amendment was served on the comptroller, who thereupon moved to dismiss the case for want of jurisdiction since he had not been served with process nor with a copy of the original complaint. The court denied this motion, holding that the comptroller had brought himself within the court's jurisdiction through his motion to vacate and through his appeal.

On the jurisdictional question, the comptroller, in his initial motion to vacate and set aside the final decree, did not raise the fact of non-service of process and copy of the original complaint; but rather the basis of the motion was that the comptroller was a necessary party to the suit. The relief sought was that the court vacate the final decree and take further proceedings 'consistent with the law and evidence as may be established.' The motion itself affirmatively shows that the comptroller had obtained certified copies of all the pleadings and orders which had been filed in the cause. He then made a voluntary appearance by the filing of his motion to vacate, incorporation therein his request that further proceedings be had, as has been indicated. Moreover, upon denial of the motion, the comptroller carried the cause to the Supreme Court on the sole question of the necessary-party feature, and he prevailed in that regard. The defense of lack of jurisdiction was first raised after the filing of the amendment to the complaint, which had been served upon the comptroller. He, therefore, possessed a copy of the complaint and the amendment. Where a judgment has been entered without acquiring jurisdiction over the person of the defendant, it is the general rule that this defect is cured if the defendant later appears and participates in subsequent proceedings or invokes the action of the court for his benefit. 3 Am.Jur., Appearances, section 37, p. 806. The defense of lack of jurisdiction over the person is waived if not timely presented. Rule 1.11(h), Florida Rules of Civil Procedure, 30 F.S.A. Under the steps taken by the comptroller, the defense as to jurisdiction of the person was not timely filed.

Adverting now to the complaint, we note that its allegations were, in effect, that Hood, in writing, requested a hearing as provided by section 212.15(4), Florida Statutes, F.S.A., but that the comptroller ignored this request and, instead, after more than thirty days had elapsed from the date of the assessment, notified Hood that legal proceedings would be instituted for collection of the taxes.

By his answer, the comptroller denied that he had ignored Hood's request for a hearing and stated that the comptroller's office, through E. B. Gay, filed supervisor, had advised Hood by letter to contact a representative of the comptroller's office, F. W. LeMosy, to arrange a hearing, but that the appellee did not do so. The comptroller further alleged that Hood failed to pursue his statutory right of appeal, in that he submitted no data nor facts for consideration within the thirty day period provided by section 212.15(4), Florida Statutes, F.S.A. It was also stated that, despite expiration of the thirty day period, the comptroller through LeMosy requested additional information from Hood's records to further substantiate the levy of the tax due the state, but that Hood failed and refused to supply the requested data.

After the final hearing, the late lamented chancellor entered his final decree, determining that the comptroller, acting by and through his representatives, ignored Hood's request for hearing before the making and filing of the delinquent retail sales and use tax report assessment and by reason thereof, the assessment was void and of no effect. The comptroller was perpetually enjoined from enforcing the collection of the assessment.

Under the comptroller's position that the court erroneously excluded certain evidence, we may observe that the testimony refused by the chancellor related to procedures employed by the comptroller with respect to the hearing provided under section 212.15(4) ¹ and also to direct contacts and conversations between Hood and representatives of the comptroller's office concerning the matter of the delinquent tax assessment. In refusing to permit the introduction of testimony of the type mentioned, the chancellor ruled in effect that such testimony was not material or relevant to the issues. Testimony of the filed supervisor, E. B. Gay, was offered to show the usual manner in which the comptroller's office handled requests for rehearing under the cited statute; and also the...