Lovett v. Lee

• Decision Date: 16 January 1940
• Citation: 193 So. 538,141 Fla. 395
• Court: Florida Supreme Court
• Parties: LOVETT J. R. E. KENNEDY v. LEE, Comptroller, et al. (DOTY et al., Interveners). B. & B. HOLDING CO. J. R. E. KENNEDY v. SAME. J. R. E. KENNEDY v. SAME.

193 So. 538

141 Fla. 395

LOVETT J. R. E. KENNEDY v. LEE, Comptroller, et al. (DOTY et al., Interveners). B. & B. HOLDING CO. J. R. E. KENNEDY v. SAME. J. R. E. KENNEDY v. SAME.

Florida Supreme Court

January 16, 1940

Rehearing Denied Feb. 21, 1940.

Suits by W. R. Lovett, the B. & B. Holding Company, and J. R. E Kennedy against J. M. Lee, as Comptroller of the state of Florida, and Rex Sweat, as Sheriff of Duval County, to enjoin the sheriff from paying over proceeds of sale and restraining the comptroller from removing property from demised premises of which plaintiffs were landlords, wherein C. T. Doty and others intervened. From a decree, plaintiffs appeal.

Reversed and remanded.

WHITFIELD P.J., dissenting. Appeal from Circuit Court Duval County; DeWitt T. Gray, judge.

COUNSEL

Ragland Kurz & Layton, of Jacksonville, for appellants W. R. Lovett and others.

L. R. Milton, of Jacksonville, for appellant James Uriah Bowden.

Jennings & Watts, of Jacksonville, for appellants C. T. Doty, J. Retta E. Shad, A. F. Baines, and Jacksonville Monticello Realty Co.

W. McL. Christie and Rhydon C. Latham, both of Jacksonville, for appellant B. & B. Holding Co.

Rogers & Towers, of Jacksonville, for appellants Florida Nat. Bank, as trustee, and O. B. Singeltary and wife.

J. M. Glickstein, of Jacksonville, for appellant Main 8th, Inc.

Harvey Mabry, of Jacksonville, for appellant John H. Peters.

Harry B. Fozzard, of Jacksonville, for appellant Norman C. Edwards.

George Couper Gibbs, Atty. Gen., and Tyrus A. Norwood, Asst. Atty. Gen., for appellees.

OPINION

BROWN Justice.

This is an appeal from a final decree of the Circuit Court of Duval County dismissing the bills of complaint of the several complainants.

Whiddon Cash Stores, a Florida corporation, was engaged in the retail grocery business in Jacksonville, Florida, and operated a number of stores. They were subject to the tax imposed under Chapter 16848 of the Laws of 1935, generally known as the 'Chain Store Act.' The Chain Store tax was not paid and on November 12, 1937, Hon. J. M. Lee, as Comptroller of the State of Florida, in pursuance of Section 12 of said Act, caused a warrant to be issued for the amount of the taxes owing by said Whiddon Cash Stores, and on November 19, 1937, the Sheriff of Duval County caused a copy of said warrant to be filed in the office of the Clerk of the Circuit Court of said county, which copy was docketed by said clerk on that day. Some six months later, on June 17, 1938, the Sheriff, in pursuance of said warrant, levied upon personal property owned by Whiddon Cash Stores and located upon premises owned by these various appellants respectively. On the date that the copy of said warrant was filed in the clerk's office and docketed by the clerk, the relation between the respective appellants and Whiddon Cash Stores was that of landlord and tenant, and on said date and prior thereto Whiddon Cash Stores had in each of the stores personal property, furniture and fixtures, which were usually kept by Whiddon Cash Stores on the respective demised premises.

The personal property so levied upon was sold by the Sheriff on July 25, 1938, to J. M. Lee as Comptroller, he having been the highest and best bidder.

Between the date of the filing and docketing of the copy of the Comptroller's warrant and the date of the Sheriff's sale, rents became payable to the appellant landlords, respectively, and the Comptroller had knowledge of the claims of said landlords at the time that the sale was made. The amount bid by the Comptroller for property located in each store was more than enough to pay the claim of each landlord for rent that had become due as above set forth.

The appellant W. R. Lovett filed a bill against Hon. J. M. Lee, as Comptroller, and Rex Sweat, as Sheriff of Duval County, for the purpose of enjoining the Sheriff from paying over the proceeds of the sale and restraining the Comptroller from removing the property from the demised premises until the claim for rent should be paid. A similar suit was instituted by appellants B. & B. Holding Company and J. R. E. Kennedy. The court ordered these suits to be consolidated. Other appellant landlords intervened, making the same claim that was made by appellant W. R. Lovett, that is, that the landlord's lien as against property usually kept on the demised premises accrued with the beginning of the tenancy, though the rent did not become payable under terms of the leases until after copy of the Comptroller's warrant was filed and docketed in the clerk's office, alleging that said landlords' lien was superior to the lien claimed by the Comptroller.

By order of the court made December 6, 1938, the Sheriff was permitted to pay the proceeds of the sale into the registry of the court and the property sold was removed from the various premises.

The question whether the liens of the landlords were superior to the lien of the State under the Chain Store Act was raised in some instances by motions to dismiss bills, and in other instances by answer and counter-claims.

The Circuit Court, by decree made March 29, 1939, found that the liens of landlords for rent that became due and payable after copy of the Comptroller's warrant was filed and docketed in the clerk's office and prior to the date of sale by the Sheriff was subject and subordinate to the claim of lien made by the Comptroller and entered a decree accordingly, from which decree this appeal has been taken.

Section 11 of Chapter 16848 provides that, independently of all other remedies and proceedings authorized by the act for the enforcement of the collection of taxes levied by the act, a right of action by suit in the name of the State of Florida is created, and that such suit may be maintained and prosecuted, and all proceedings taken to the same effect and extent as for the enforcement of a right of action for debt or assumpsit, and that any and all remedies available in such actions, including attachment and garnishment, shall be available to the State of Florida in enforcement of the payment of such tax. This section further provides that any person refusing to make return and pay the tax levied by the act may be enjoined from operating in violation of the provision of the act upon the complaint of the Comptroller.

Section 12 of said Chapter 16848 reads as follows:

'Section 12. Lien. There is hereby created a lien in favor of the State of Florida upon all the property both real and personal of any person who shall become liable for the payment of any tax levied and imposed upon this Act for the amount of the tax due and payable under the provisions hereof together with interest, cost and penalties, and if any tax imposed by this Act, or any portion of such tax, be not paid within sixty days after the same becomes delinquent, the Comptroller may, thereafter, issue a warrant under his official seal, directed to all and singular Sheriffs of the State of Florida commanding them to levy upon and sell any real and personal property of the person liable for said tax within their respective jurisdiction, for the payment of the amount thereof, with the added penalties, interest and the cost of executing the warrant, and to return such warrant to the Comptroller and to pay to him the money collected by virtue thereof by a time to be therein specified, not more than sixty days from the date of the warrant. The Sheriff shall, within five days after the receipt of the warrant, file with the Clerk of the Circuit Court of his county a copy thereof, and thereupon the clerk shall record the same in a book to be provided for the purpose, showing the name of the person mentioned in the warrant, and, in proper columns, the amount of the tax or portion thereof and interest and penalties for which warrant is issued, and the date when such copy is filed, and thereupon the amount of such warrant so docketed shall become a lien upon the title to and interest, whether legal or equitable, in any real property, chattels, real or personal property of such person against whom such warrant is issued, in the same manner as a judgment duly docketed in the office of such Circuit Court Clerk with execution duly issued thereon and in the hands of the Sheriff for levy, and such lien shall be prior, preferred and superior to all mortgages or other liens, filed or recorded subsequent to the date such tax lien becomes effective. Such Sheriff shall thereupon proceed upon the same in all respects, with like effect and in the same manner prescribed by law in respect to executions issued against property upon judgments of a Circuit Court, and shall be entitled to the same fees for his services in executing the warrant, to be collected in the same manner. In case of failure of any Sheriff to file a copy of the warrant with the Clerk of the Circuit Court as herein prescribed, a certified copy thereof filed by the Comptroller shall operate to the same effect as if same had been filed by the Sheriff.'

It thus appears that Section 12 provides that the filing and docketing of the Comptroller's warrant shall become a lien 'in the same manner as a judgment duly docketed in the office of such Circuit Court Clerk with execution duly issued thereon and in the hands of the Sheriff for levy, and such lien shall be prior, preferred and superior to all mortgages or other liens, filed or recorded subsequent to the date such tax lien becomes effective.' (Italics supplied.) It thus appears that the statute provides that the filing and docketing of the Comptroller's warrant becomes a lien in the same manner as a judgment duly docketed, with execution duly issued thereon and in the hadns of the Sheriff for levy, and that it is this lien, thus made effective by the filing and...