Harris v. City of Sarasota

• Decision Date: 14 May 1938
• Citation: 132 Fla. 568,181 So. 366
• Parties: HARRIS et al. v. CITY OF SARASOTA.
• Court: Florida Supreme Court

181 So. 366

132 Fla. 568

HARRIS et al. v. CITY OF SARASOTA.

Florida Supreme Court

May 14, 1938

Suit by Lucile Harris and others against the City of Sarasota to vacate a final decree of foreclosure made in proceeding for enforcement of delinquent municipal tax payments. From an adverse order, plaintiffs appeal.

Affirmed. Appeal from Circuit Court, Sarasota County; W T. Harrison, judge.

COUNSEL

N. G. &amp John Fite Robertson, Stephen B. Jennings, Glover Ashby, and J. Douglas Arnest, all of Sarasota, for appellants.

Williams & Dart, of Sarasota, for appellee.

The order appealed from is as follows:

'This cause coming on to be heard upon the motions of Lucile Harris, C. F. Walker and J. M. Christy to set aside and vacate the final decree of foreclosure, sale, confirmation and deed issued pursuant thereto in this cause, and the same having been argued by counsel representing the respective parties and duly considered by the Court.

'The Court is of the opinion that this suit having been brought under the provisions of chapter 13403 of the Special Acts of 1927, known as the Charter of the City of Sarasota, the same constitutes a proceeding in rem.

'That the motion of Lucile Harris fails to show that no copy of said notice was mailed to or received by her and that she is, therefore, not entitled to raise the question made by her motion; that, though the movant, J. M. Christy, was and is the holder of a mortgage covering certain property described in the said suit, and the movant, C. F. Walker, was and is the holder of a judgment against an owner whose property was described in said suit and, though neither was mailed a notice of such proceedings, the Court is nevertheless of the opinion that the posting, publishing, and the certificate of the Clerk showing the mailing of copies of the notice to the owners, was under the holdings in the cases of City of Coral Gables v. Certain Lands, etc., 110 Fla. 189, 149 So. 36, and Fleming v. Fleming, Fla., 177 So. 607, sufficient notice to all parties interested in any of the lands described in said proceedings whether as owner, mortgagee, judgment holder or otherwise, and gave the Court jurisdiction of the land and all parties interested therein and that the said Act and the proceedings thereunder are not in violation of either the State or Federal Constitutions.

'The Court is further of the opinion that the said Act is not in conflict with sections 20 and 21 of article 3 of the Constitution of the State of Florida.

'The Court further finds that the error complained of as to the Clerk's certificate of parties to whom copies of said order were mailed constituted error which made the proceeding voidable only.

'Done and ordered at Sarasota, Florida, this 8th day of February, A. D. 1938.

'W. T. Harrison

'As Judge of the above court'

The grounds of the motions to vacate are:

'1. The provisions of section 38 of the said Act known as the Charter of the City of Sarasota are in direct conflict with the due process clauses of the Constitution of the United States and the Constitution of the State of Florida [U.S.C.A. Const. Amend. 14; Const.Fla. Declaration of Rights, § 12].

'2. That section 38 of the Charter of the said City of Sarasota is in fact a special or local law and in conflict with sections 20 and 21 of article 3 of the Constitution of the State of Florida.

'3. Undre the proceedings had under the said act the Court did not acquire jurisdiction of this movant or of his property by reason of the fact that no personal service was had upon him, though he was then a resident of and living in the City of Sarasota, Florida.

'4. The Clerk failed to mail to each of the parties defendant to said bill a copy of the notice as required by section 38, but mailed 'a copy of said notice to each of the defendants whose post office address is known and stated in said notice.'

Section 38, c. 13403, Sp.Acts 1927, contains the following:

'Sec. 38. All delinquent taxes upon real estate, due the City of Sarasota, and including those represented by unpaid and uncancelled tax certificates owned by the City of Sarasota, shall only be collected by a bill in equity; said bill to contain a description of each and every piece, parcel, or lot of land against which any tax has been assessed and which has become delinquent, and whether tax certificates have been issued against said property or not; also the amount of the assessment or assessments, the year or years for which said taxes may be delinquent, the name of the owner thereof, or the person to whom last assessed, and said bill shall not be objectionable because of the multiplicity of parties or of the number of the pieces, parcels, or lots of land covered thereby. Upon the filing of said bill it shall be the duty of the Clerk of the Circuit Court to issue a notice substantially as follows:

'NOTICE

OPINION

'In the Circuit Court, Sarasota County, Florida, in Chancery

'The City of Sarasota, Complainant,

Vs.

'Delinquent Taxes, Etc., Defendant.

'Notice is hereby given to all persons having or claiming any interest in the following described lands that a bill has been filed in the above styled court, for the purpose of collecting the delinquent taxes on the lands situated within the City of Sarasota, in said Sarasota County, Florida, said lands together with the amount of delinquent taxes, interest, penalties and the owners thereof or the person to whom last assessed being described and set out as follows, to-wit: (Here follows a description of the lands with the amount of the tax, and owners, or person to whom last assessed.) Any and all persons or corporations interested in said lands are hereby required to be and appear at the office of the Clerk of said Court on or before the first Monday of ....., A. D. 19 .., to answer the said bill, else the same will be taken as confessed.

'This notice shall be published for four consecutive weeks in a newspaper published in the City of Sarasota the first publication to be the ..... day of ....., A. D. 19 ..

'........

'Clerk Circuit Court.

'A copy of the notice shall be mailed to each of the parties defendant to said bill whose post office shall be known and stated in said bill; also a copy of said notice shall be posted at the front door of the Court House, and also published for four (4) consecutive weeks in a newspaper to be designated in said notice. The certificate of the Clerk that said notice was mailed to each of said defendants whose post office address is known and stated, that a copy was posted and likewise published as above provided, shall be filed in said cause, which shall be sufficient proof thereof to give the Court jurisdiction over the parties to said bill, both known and unknown, and the subject matter thereof. And thereafter said cause shall be governed in its prosecution to final decree and sale in accordance with the rules and practices as other equity suits, and the Court shall upon the final hearing, decree whether said delinquent tax shall be collected, the amount thereof, as against each piece, parcel, or lot of land with interest and penalties, fix a reasonable attorney's fee to be allowed the attorney representing the City, which fee and the costs of said proceeding shall be pro rated against each piece, parcel, or lot of land in proportion to the amount of tax due thereon and in default of the payment thereof for thirty days from the date of said decree, direct that said lands shall be sold at public outcry to the highest and best bidder for cash, and appoint a master or shall authorize and empower the Tax Collector to make said sale, after having given thirty days' notice of the time and place of said sale by publication; and at said sale the Master or Tax Collector as the case may be, shall sell each piece or parcel or tract of land separately and execute a deed therefor; but before any deed or deeds shall be made to the purchaser or purchasers, said sale or sales shall be reported to the Court for confirmation.

'In the event any piece, parcel, lot, or tract of land against which a delinquent tax is being enforced in accordance with the provisions of this law should fail to bring at said sale an amount sufficient to pay the delinquent taxes with interest and penalties and its pro rata share of the costs of said suit and attorney's fee, the officer making the sale shall bid the same in for and on...