Sarasota-Fruitville Drainage Dist. v. Certain Lands Within Said Dist. Upon Which Drainage Taxes for the Year 1952 Have Not Been Paid, SARASOTA-FRUITVILLE

• Decision Date: 23 February 1955
• Docket Number: SARASOTA-FRUITVILLE
• Citation: 80 So.2d 335
• Parties: DRAINAGE DISTRICT, a corporation, Appellant, v. CERTAIN LANDS WITHIN SAID DISTRICT UPON WHICH DRAINAGE TAXES FOR THE YEAR 1952HAVE NOT BEEN PAID, Appellee.
• Court: Florida Supreme Court

Page 335

80 So.2d 335

SARASOTA-FRUITVILLE DRAINAGE DISTRICT, a corporation, Appellant, v. CERTAIN LANDS WITHIN SAID DISTRICT UPON WHICH DRAINAGE TAXES FOR THE YEAR 1952HAVE NOT BEEN PAID, Appellee.

Supreme Court of Florida, En Banc.

Feb. 23, 1955.

Rehearing Denied April 27, 1955.

Forrest Chapman and Charles E. Earley, Sarasota, for appellant.

No appearance for appellee.

DREW, Justice.

The appellant, Sarasota-Fruitville Drainage District, a corporation, filed its bill of complaint against 'Certain Lands Within Said District Upon Which Drainage Taxes for the Year 1952 Have Not Been Paid' pursuant to the provisions of Section 298.75, F.S.1951, F.S.A. The prayer of the complaint was for an accounting to ascertain the amount due and owning plaintiff District for drainage taxes and costs in connection with the foreclosure 'and that said amounts be decreed to be a first lien on the property against which certain drainage taxes were levied and assessed and decreeing the payment thereof to be made on a day certain and that in the default of such payment that said property may be sold to satisfy said lien found to be due and owing and that payment thereof be made from proceeds of such sale.'

Shortly after the complaint was filed the Drainage District presented to the Circuit Court of Sarasota County a proposed notice to defend directed 'to all persons and corporations interested in or having any lien or claim upon any of the lands herein described.' The land against which taxes had been assessed for 1952 and which were not paid were described in the notice and the persons and corporations to whom the notice was directed were required by said notice to file their answer or other defensive pleadings to the bill of complaint and to serve a copy thereof upon plaintiff's attorney on a day the designation of which was left blank in said notice. The notice further provided for the entry of a decree pro confesso against such parties and also provided that the notice should be published once a week for four consecutive weeks in the Sarasota Herald-Tribune, a newspaper published in Sarasota. The lower court refused to issue the notice to appear and set forth its reasons for so doing in the following order:

'This cause coming on this day to be heard upon the application of the Plaintiff for the Court to issue a notice to defend in this cause a copy of which with land descriptions omitted is hereto attached, and it appearing to the Court that this cause has been filed as an in rem proceeding under the provisions of Section 298.75, Florida Statutes 1953 (F.S.A.), and that said Section 298.75 does not provide for the details of the form and manner of service of process in in rem drainage district tax lien foreclosure actions; and that no sworn statement as a condition precedent to constructive service as set out in Chapter 48, Florida Statutes 1953 (F.S.A.), has been filed in this cause; and that neither the Court nor its Clerk is authorized to fix the form and manner of service of process in an in rem drainage district tax lien foreclosure action or to issue the notice to defend hereto attached as held by our Supreme Court in Early v. Sarasota-Fruitville Drainage District, 67 So.2d 441; and the Court being in doubt as to the constitutionality of Section 298.75, Florida Statutes 1953 (F.S.A.), in that the same may fail to provide due process of law to confer upon this Court jurisdiction of the subject matter of this suit or of the parties interested therein; and the Court being otherwise fully advised in the premises;

'It Is Ordered, Adjudged And Decreed by the Court that the...