Mcmichael v. Grady

• Citation: 34 Fla. 219,15 So. 765
• Parties: McMICHAEL v. GRADY, Sheriff, et al.
• Decision Date: 16 July 1894
• Court: United States State Supreme Court of Florida

15 So. 765

34 Fla. 219

McMICHAEL v. GRADY, Sheriff, et al.

Florida Supreme Court

July 16, 1894

Appeal from circuit court, Pasco county; G. A. Hanson, Judge.

Bill by John T. McMichael against James A. Grady, sheriff of Pasco county, and others. Bill dismissed, and plaintiff appeals. Reversed.

Syllabus by the Court

SYLLABUS

1. Under chapter 3246, Laws approved March 7, 1881, entitled 'An act to enlarge the equity jurisdiction of the circuit courts,' our courts of equity are clothed with full and complete jurisdiction over the matter of the homestead and exemptions allowed by the constitution and laws; not only to adjudicate as to the rights of parties thereto, but to control and direct the setting apart and allotment thereof and to restrain interference therewith, or sale thereof under any inhibited process of law, and to pass upon and adjudicate the propriety of any exemption set apart by any officer, and to rectify it if improper.

2. Where personal property that is exempt from forced sale to the head of a family, under our constitution, is simply levied upon by attachment or other process of law, the mere silence or failure of the party entitled to such exemption to assert or claim it until there is an actual attempt at forced sale of such property, under the process of some court cannot constitute a waiver of the right, or work an estoppel to its assertion when the inhibited forced sale is actually attempted.

3. During the absence of the circuit judge from the county where the bill is pending, court commissioners, appointed under the provisions of our constitution, have the authority to grant an injunction in any cause in which a circuit judge could have granted it if present.

4. Under our statute, where summary process by injunction is prayed, and the bill justifies it, and affidavit shall be made of the truth of the statements of the bill, and that the complainant is unable to give bond of indemnity, or other security, if the statements of the bill and accompanying affidavit shall appear by ex parte evidence to be true, to the chancellor or court commissioner to whom the application is made, it is not error to grant the injunction without bond.

COUNSEL R. W. Williams, for appellant.

Sparkman & Sparkman and John B. Johnston, for appellees.

OPINION

TAYLOR J.

John T McMichael, the appellant, on the 6th day of January, 1890, filed his bill in equity in the circuit court of Pasco county against James A. Grady, as sheriff of said county, and against the firms of Eckman & Vetsburg, Frank & Co., Joseph Rosenheim & Co., Meinhard Bros. & Co., Hexter & Kohn, A. Einstein Sons, Einstein & Lehman, and A. R. McCowan & Co., alleging therein that on the 5th of December, 1889, the defendants the above-named firms obtained final judgments against him, in sundry suits in assumpsit, with ancillary attachments. That on the 21st day of December, 1889, the said defendants, upon an affidavit averring that the stock of goods that had been levied upon by virtue of the attachments in said suits was of a perishable nature, obtained an order at law from the circuit judge for the sale of said goods. That, under said order, the defendant Grady, as sheriff of Pasco county, has duly advertised the said stock of goods for sale on the 6th day of January, 1890. (Copy of the sheriff's advertisement is attached, as an exhibit, to the bill.) That he is the head of a family residing in this state. That his family consists of himself, wife, and two small children. That, as such head of a family, he is entitled to the constitutional exemption of $1,000 worth of personal property from forced sale under process of any court. That he has never had the benefit, or availed himself, of said constitutional provision. That, subsequent to the levy of said writs of attachments and executions on his property, as aforesaid, by the defendant Grady, as sheriff, your orator notified the defendant Grady, in his official capacity as sheriff, in custody and control of your orator's property, in writing and in person, that your orator desired to avail himself of his right to exempt $1,000 worth of the property levied upon, or so much as might be necessary to enable him to avail himself of the benefit of said constitutional exemption. That said Grady refused to comply with your orator's desire, and your orator again, on the 2d day of January, A. D. 1890, served a written notice on said defendant Grady, as such sheriff, of his desire to avail himself of his right to exempt $1,000 worth of personal property from forced sale, and offering then to point out all of his property, and desiring the said Grady, as sheriff, to make an inventory of the same, that orator might make oath to its containing a true and perfect list of all his personal property, so that appraisers might be appointed to appraise same at its cash value, in order that orator might select from such inventory of personal property an amount, according to such appraisal, not exceeding $1,000, and exempt the same from forced sale under process of any court, and especially from the sale under the said order of this court, made on the law side thereof, advertised to take place on the 6th of January, 1890, under executions in favor of the defendants the said firms aforesaid. And your orator charges that the plaintiffs in said executions, who are the defendants named in this bill, have no specific lien upon the property which your orator is entitled to have exempted to him. (A copy of the demand upon Grady, as sheriff, is attached as a part of, and as an exhibit to, the bill, and is as follows: 'To James A. Grady, Sheriff of Pasco County, State of Florida: I desire you to make an inventory of all of my personal property, and am now ready to point out the whole of my personal property to you, so that you may make an inventory, and to make oath that said inventory, when taken, contains a true and perfect list of all of my personal property, so that appraisers may be appointed to appraise the same at its cash value, in order that I may select from such an inventory an amount of such property, according to such appraisal, not exceeding one thousand dollars, which I claim and desire to be exempt from forced sale under the laws of this state, and especially from sale under executions in favor of Eckman and Vetsburg et al. against myself, as advertised by you to take place on 6th day of January, A. D. 1890. John T. McMichael.') That the said Grady, as sheriff, combining and confederating with the other defendants herein, with the intent to deprive your orator of his constitutional right to an exemption, and knowing full well that your honor is now absent from Pasco county on the circuit in Monroe county, in the city of Key West, some hundreds of miles from railroad communication, so that no order could be obtained of benefit to your orator to compel him, as such sheriff, to set apart your orator's exemption, and desist from the sale of same, and taking advantage of the order of sale made by your honor, wherein it is ordered that he, as sheriff, do pay over the proceeds of said sale to be had on January 6, 1890, to the said plaintiffs in execution, has absolutely refused to entertain any of your orator's requests or demands that he comply with orator's desire to have exempted to him $1,000 worth of personal property, and have the same selected and set apart to him, out of the goods levied on, described in the advertisement of sale heretofore referred to as Exhibit A, before said sale should take place, in utter disregard of your orator's right as the head of a family in the premises. That if said sale advertised to be made by said sheriff on January 6, 1890, is allowed to take place, it will of itself operate to defeat your orator's constitutional exemption, as said order of sale is for the sale of a certain stock of goods, wares, and general merchandise, consisting of clothing, boots and shoes, hats, millinery, dry goods, etc., levied upon, as the property of your orator, to satisfy executions in favor of the other defendants herein specified. That said sale is to be for cash, and the proceeds of sale are to be paid over to the said defendants, who are named as plaintiffs in said executions. That said property so advertised for sale is about all of the personal property now owned by your orator in the state of Florida, and, if that property is sold, then there will none be left from which to select an exemption, and your orator cannot exempt the proceeds of the sale of same, because it is ordered to be paid over to the defendants above named, as plaintiffs in said executions, and, owing to the absence of your honor in Key West, as aforesaid, the proceeds of said sale would be in their hands before any order could be obtained to stay the same in the hands of the defendant Grady, as sheriff, or to pay the same into the registry of the court, and the injury would be irreparable, as all of said defendants, the plaintiffs in said executions, are nonresidents of this state.

The bill prays that the defendants be restrained and enjoined from selling, or offering for sale, the property levied upon and advertised to be sold on the 6th day of January, A. D. 1890, until after your orator be allowed to select, and have set apart to him, from sale, an amount not exceeding $1,000 worth of personal property, as exempt from levy and sale under process of any court, and particularly from sale under the said executions in favor of the defendantss especially as your orator alleges and charges that said defendants have established no specific lien upon any of said property for the purchase money of the same. There is a prayer, also, for general relief. Said bill was verified by the oath of the complainant, in which oath he further...