Reina v. Hope

• Citation: 30 So.2d 172,158 Fla. 771
• Parties: REINA et al. v. HOPE.
• Decision Date: 25 April 1947
• Court: United States State Supreme Court of Florida

30 So.2d 172

158 Fla. 771

REINA et al. v. HOPE.

Florida Supreme Court

April 25, 1947

Rehearing Denied May 16, 1947.

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

Lewis E Purvis, of Arcadia, for petitioners.

M. A Rosin, of Arcadia, Karl E. Whitaker and William E. Thompson both of Tampa, J. Lewis Hall and Lewis H. Tribble, both of Tallahassee, T. M. Shackleford, Jr., of Tampa, Carroll R. Runyon, of St. Petersburg, Edward L. Sempel and Park H. Campbell, both of Miami, Francis C. Dart, of Sarasota, Archie Clement, of Tarpon Springs, Fred T. Peebles, of Dunedin, George W. Smith, of Clearwater, John D. Harris, of St. Petersburg, Ben Fuqua, of Palmetto, G. B. Knowles, of Bradenton, A. R. Surles, Jr., of Auburndale, Harry E. King, of Winter Haven, Maurice J. Wilson, of Bartow, Campbell Thornal, of Orlando, Walter W. Woolfolk, of Lake Wales, Latimer A. Long, of Auburndale, and Rodgers & Kirkland, of Winter Garden, for respondent.

Fred R. Wilson, William M. Madison, and W. Robert Smith, amici curiae.

TERRELL, Justice.

This is an in rem proceeding to foreclose municipal tax liens in the manner provided by Chapter 15038, Acts of 1931, Chapter 173, Florida Statutes 1941, F.S.A. The point in controversy is whether or not due process is satisfied when property is advertised and sold for taxes in an in rem proceeding without any notice to the owner other than the published notice required by Section 173.04, Florida Statutes 1941, F.S.A.

On November 15 1946, this case was before us and we held that to satisfy the elements of due process, actual or constructive notice of the suit to foreclose the tax lien must be brought to the attention of the property owner at some state of the litigation. On January 28, 1947, the matter was again considered by us on petition for rehearing and we reaffirmed our ruling of November 15th, our thought in both cases being that if constructive notice was relied on, copy of the notice should be mailed to the last known address of the owner. On February 28, 1947, the matter was brought to our attention the third time by application to file an extraordinary petition for rehearing. We re-opened the case ex mero motu and permitted briefs to be filed on the point stated in the forepart of this opinion.

The answer to the question presented turns on the interpretation of Section 173.04, Florida Statutes 1941, F.S.A. We agreed to re-open the case for the present consideration because of variance in the interpretation of our opinion in Fleming v. Fleming, 130 Fla. 264, 177 So. 607, and McCann v. City of St. Petersburg, 145 Fla. 158, 199 So. 264. Both these cases had to do with the matter of constructive service as required by Section 173.04. On first consideration of the instant case we were impressed with the fact that there were material factual differences between Fleming v. Fleming and McCann v. City of St. Petersburg, but on further consideration we have decided that no such differences exist. The point decided in both cases was that the thirty day written notice required by Section 173.04 to be mailed by registered mail to the last known address of the owner was directory only.

The court is now of the view that the third paragraph of Section 173.04, '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,' is ample to satisfy due process without further notice to the land owner and would be sufficient on which to predicate sale of his lands for non-payment of taxes.

This appears to have been the interpretation placed on Fleming v. Fleming and McCann v. City of St. Petersburg, by counties and municipalities in the foreclosure of tax liens, and many sales have been so made. It may be justified on the theory that the land owner is on notice...