Mccann v. City of St. Petersburg

• Decision Date: 26 November 1940
• Parties: McCANN v. CITY OF ST. PETERSBURG et al.
• Court: Florida Supreme Court

199 So. 264

145 Fla. 158

McCANN v. CITY OF ST. PETERSBURG et al.

Florida Supreme Court, Division B.

November 26, 1940

Rehearing Denied Dec. 20, 1940.

Suit in the nature of a bill of review by William G. McCann against the City of St. Petersburg, a municipal corporation, for the use of Glenn V. Leland, as receiver of the Certificate Sinking Fund of the City of St. Petersburg, Florida, and the City of St. Petersburg, a municipal corporation, Lillian B Mitchell and W. H. Mitchell, her husband, to vacate and set aside and annul a final decree of the circuit court of Pinellas county, Florida, in so far as the decree affected certain described realty of the plaintiff. From an adverse judgment, the plaintiff appeals.

Affirmed.

On Petition for Rehearing.

Appeal from Circuit Court, Pinellas County; T Frank Hobson, judge.

COUNSEL

L. D Martin, of St. Petersburg, for appellant.

Askew & Kiernan, of St. Petersburg, for appellees.

OPINION

CHAPMAN Justice.

The record here discloses that the Honorable T. Frank Hobson, a Judge of the Sixth Judicial Circuit of Pinellas County, entered an order on July 31, 1939, granting leave and authority to file a bill in the nature of a bill of review. Pursuant thereto on July 31, 1939, the bill in the nature of a bill of review was filed and the prayer thereof, among other things, sought to vacate, set aside and annul a final decree of the Circuit Court of Pinellas County, Florida, dated September 16, 1938, in so far as the final decree affected certain described lands of the plaintiff below. The confirmation of the sale under the final decree was approved by an order of the Court on June 12, 1939.

It was made to appear that the final decree dated September 16, 1938, sought to be vacated or annulled, in part, was made and entered by the lower court under the provisions of Chapter 15038, Acts of 1931, Laws of Florida, and among the legal reasons advanced for setting aside the final decree are viz: (1) there was not attached to the bill of complaint a certificate of the attorney to the effect that written notice had been given as required by Section 4 of said Chapter, viz:

'* * * A certificate of the attorney shall be attached to the bill of complaint to the effect that said written notice has been given, and such certificate shall be prima facie evidence that the provisions of this Section have been complied with. The complainant's counsel shall make diligent inquiry as to the address of the record title and holders of record liens other than judgments and the Clerk of the Circuit Court shall mail by registered mail a copy of the notice hereinafter provided for, to such record owner and holders of record liens other than judgments at such last known address. * * *'

(2) The Clerk of the Circuit Court of Pinellas County failed and omitted to mail notice by registered mail as provided by Section 4, supra; (3) the sale price of the land was grossly inadequate in that it sold for $3400, when its reasonable cash value was $10,000.

On August 16, 1939, a motion was filed to dismiss the bill in the nature of a bill of review on grounds: (a) the bill was without equity; (b) the bill failed to state grounds for the court to exercise its jurisdiction; (c) the court was without jurisdiction to entertain the bill. The case at bar was heard in the lower court on the motion to dismiss the bill in the nature of a bill of review as amended, when the motion to dismiss was sustained and an appeal therefrom has been perfected to this Court.

The order or decree appealed from and assigned as error is, viz.:

'This cause having come before me upon the motion of the defendant, City of St. Petersburg, a municipal corporation, for the use of Glenn V. Leland, as Receiver of the Certificate Sinking Fund of the City of St. Petersburg, Florida, to dismiss the plaintiff's bill in the nature of a bill of review, as amended, and the cause having been argued by counsel for the respective parties thereto, and the Supreme Court of the State of Florida having upheld the constitutionality of Chapter 15038, Acts of 1931, City of Coral Gables v. Certain Lands (110 Fla. 189), 149 So. 36; Baynard v. City of St. Petersburg (130 Fla. 471), 178 So. 150, and the Supreme Court having further held that said Act is an in rem proceeding, City of Miami v. Certain Lands (126 Fla. 781), 171 So. 798; City of Coral Gables v. Certain Lands, supra, and the Supreme Court having further held that jurisdiction of the land and of all parties interested therein or having any lien thereon is obtained by the plaintiff complying with the Third Paragraph of Section 4, of said Act, Fleming v. Fleming, (130 Fla. 264), 177 So. 607.

'This Court, therefore, finds, in view of the foregoing decisions, that the defendant's motion is well taken.'

This Court has sustained the constitutionality of Chapter 15038, Acts of 1931, Laws of Florida, against attacks on numerous grounds. See cases cited in the order or decree supra, made and entered by the Honorable T. Frank Hobson, Circuit Judge. Section 4 of Chapter 15038, supra, further provides:

'* * * It shall be unnecessary to name in such bill or proceedings any person or persons owning or having any interest in or lien upon such lands as defendants. At least thirty days prior to the filing of any such bill in chancery, written notice of intention to file the same shall be sent by registered mail to the last known address of the holder of the record title and to the holder of record of each mortgage or other lien, except judgment liens, upon each tract of land to be included in said bill in chancery; such notice shall briefly describe the particular lot or parcel of land, shall state the amount of tax certificate and/or special assessment liens sought to be enforced and shall warn said owner and/or holders of liens, mortgages or other liens that on or after the day therein named said bill in chancery to enforce the same will be filed, unless paid on or before said date. * * *

'Jurisdiction of any of said lands and of all parties interested therein or having any lien thereon shall be obtained by publication of a notice to be issued as of course by the Clerk of the Circuit Court in which such bill is filed, on the request of complainant, once each week for not less than four consecutive weeks, directed to all persons and corporations interested in or having any lien or claim upon any of the lands described in said notice and said bill. * * *'

The contention is made that the final decree here challenged is void because the Clerk of the Circuit Court of Pinellas County failed and omitted to send by registered mail to the persons designated thirty days prior to filing suit written notice of intention to file said suit, and that a certificate of the attorney to the effect that the provision as to mailing of notice was not attached to the bill of complaint, rendering the decree fatally defective. In other words, counsel contends that the provisions of the Act are mandatory and a failure to comply therewith renders the decree void on the theory that the court never acquired jurisdiction of the subject matter. Provisions of similar statutes have been held by a number of other jurisdictions to be directory and not mandatory. We think this question has been settled adversely to the contention of counsel in the case of Fleming v. Fleming, 130 Fla. 264, 177 So. 607, 608, viz:

'The amended bill of complaint is grounded upon the alleged insufficiency of the service to bind the appellant here, who was complainant in this suit in the court below; but the allegations are entirely insufficient to show that either provision of the statute above quoted was not strictly complied with. In effect, the complainant says that if the statute was complied with she did not receive the notice required to be mailed to her by registered mail and that she did not observe the notice published in a newspaper. The notice required to be mailed thirty days before the institution of the suit, we think, could not be held to be jurisdictional. The giving of that notice is directory so that the land-owner may have opportunity to pay off and discharge the tax lien before the institution of suit.

'The bill of complaint shows that the complainant knew that taxes were delinquent and had not paid the same. But the court acquired jurisdiction of the cause by compliance with the section of the statute requiring newspaper publication. The statute, chapter 15038, supra, provides a substantial form of notice to be published to comply with the provision of the third paragraph of section 4, hereinbefore quoted.'

See Horne v. City of Ocala, Fla., 196 So. 441; Baynard v. City of St. Petersburg, 130 Fla. 471, 178 So. 150.

It is next contended that the order or decree confirming the sale made under the terms and conditions of the final decree should be vacated and annulled because of the amount received at the sale for the property was $3,400 and the reasonable cash value thereof is the sum of $10,000. The answer to this contention is found in the ruling of this Court in the case of Ruff v. Guaranty Title & Trust Co., 99 Fla. 197, 126 So. 383, 384, when this Court said:

'This court, in Mitchell v. Mason, 75 Fla. 679, text 684 79 So. 163, held that an order confirming a sale under a foreclosure decree is equivalent to an adjudication that the sale was one proper to be approved, and creates a presumption of the regularity of the proceedings. With that rule in force, the burden was on the appellant to overcome the presumption by a proper showing, and yet the only ground for the petition that has even remotely any support in the affidavits accompanying it is the one that states that the amount offered for the property was grossly inadequate. ...