Gulf View Apartments, Inc. v. City of Venice

• Decision Date: 14 January 1933
• Parties: GULF VIEW APARTMENTS, Inc., et al. v. CITY OF VENICE.
• Court: Florida Supreme Court

145 So. 842

108 Fla. 41

GULF VIEW APARTMENTS, Inc., et al. v. CITY OF VENICE.

Florida Supreme Court, Division B.

January 14, 1933

Rehearing Denied Feb. 7, 1933.

Suit by the City of Venice against the Gulf View Apartments, Inc. and others. From the decree, defendants appeal.

Affirmed. Appeal from Circuit Court, Sarasota County; Paul C. Albritton, judge.

COUNSEL

John F Burket, of Sarasota, for appellants.

Surrency & Keen, of Sarasota, for appellee.

OPINION

TERRELL J.

The appellee, city of Venice, instituted this suit in chancery against appellants as defendants below to foreclose a paving assessment lien against lot 4 of block 105, Venezia Park section of Venice. The defendant, Engineers' National Bank of Cleveland, Ohio, appeared specially, and moved to quash the constructive service made on it. This motion was denied, and the defendants entered their joint and several answers to the bill of complaint. A demurrer and motion to strike certain portions of the answer was granted. This appeal is from that decree.

It is first contended that the lien sought to be foreclosed is void because the city failed to follow the provisions of its charter in respect to entries required to be made in the 'Street Improvement Lien Book.'

Section 4 of article 11 of chapter 11776, Extraordinary Session Laws of 1925, and section 4 of chapter 13478, Special Acts of 1927, being the provisions of the city charter referred to require that, upon completion of the improvements, the city council shall, as soon as practicable, but within thirty days thereafter, prepare a statement of the cost of said improvements and enter in the 'Street Improvement Lien Book' the amount of such costs, the date of the completion of the work, and the description of the lot upon which the lien is claimed.

The bill of complaint alleges that the improvement was completed December 5, 1927. The record discloses that the assessment was entered in the 'Street Improvement Lien Book' as of this date, and that the amount of the assessment, including a description of the lot, was also entered therein in substantial compliance with the charter. Mere irregularities in the entries that do not deceive or mislead will not vitiate the lien. We think the procedure here was sufficient to constitute a valid lien.

The record further discloses that, within the forty-five days allowed by the city charter, the city council on petition of interested property holders reduced the assessment complained of by 10 per cent. The appellant at no time objected to the improvements, or to the lien of the assessments within the time allowed by the charter or to the validity of the bonds, and the validity of the entries in the 'Street Improvement Lien Book' was considered and approved of by this court in the City of Venice v. State, 96 Fla. 527, 118 So. 308.

Supplementing what has been said, our attention is directed to the fact that the city charter in effect provides that, when the costs of improvements are entered in the 'Street Improvement Lien Book,' they become a fixed lien upon the property described, and that in no event shall the validity of such lien be questioned in any direct or collateral proceeding more than three months after the completion of the work; and that a copy of the entry of any such lien in the 'Street Improvement Lien Book' certified by the city clerk under the corporate seal of the city shall constitute prima facie evidence of the amount and existence of the lien upon the property described in any proceeding to enforce or defend such lien.

In this case the work was completed December 5 1927. This suit was instituted October 23, 1929, almost two years later; in other words, the three-month limitation had long since expired, and no objection was offered to the assessment or the lien, notwithstanding this could have been done before the council as an equalizing board, or the letting of the contract for the improvement could have been enjoined or resistance to the validation of the bonds by intervention could have been made, but, failing to take advantage of any of these means of protection within...