Schwartz v. Capital City First Nat. Bank

• Decision Date: 22 November 1978
• Docket Number: No. II-296,II-296
• Citation: 365 So.2d 181
• Parties: Benjamin S. SCHWARTZ, Appellant, v. CAPITAL CITY FIRST NATIONAL BANK, Appellee.
• Court: Florida District Court of Appeals

Page 181

365 So.2d 181

Benjamin S. SCHWARTZ, Appellant, v. CAPITAL CITY FIRST NATIONAL BANK, Appellee.

No. II-296.

District Court of Appeal of Florida, First District.

Nov. 22, 1978.

Rehearing Denied Jan. 8, 1979.

James C. Truett, Tallahassee, and Brian T. Hayes, Monticello, for appellant.

William M. Smith and Timothy B. Elliott of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellee.

McCORD, Chief Judge.

This interlocutory appeal is from an order of the trial court denying appellant's motion for change of venue, motion to dismiss and motion to stay. We affirm.

The trial court entered a summary judgment in favor of appellee against Harold Taines, Sue Taines, Gerald Taines and Beatrice Taines. Writ of execution was issued and delivered to the Sheriff of Broward County where some of the judgment debtors resided and the writ of execution has not been satisfied. Appellee Bank then filed in the cause its "Motion for Proceedings Supplementary to Execution and Motion for Impleader of Third Parties." The trial court entered an "Order for Proceedings Supplementary to Execution and Impleader of Third Parties" which directed that a summons be issued by the Clerk of the Court and that an answer or other response be filed by the impleaded parties within 20 days of service on them. The Bank subsequently had the Clerk of the Court issue only one summons and that one was directed to Benjamin S. Schwartz individually and as co-trustee, along with Craig Taines, Lauren S. Taines, and Lance Taines of an unrecorded trust dated September 4, 1974. That summons was served on appellant Benjamin S. Schwartz in Dade County where he resided on October 14, 1977. Schwartz filed an answer, a motion to stay, a motion to dismiss and motion for change of venue. The court entered its order denying the motions. As to the motion to stay, it was denied without prejudice to appellant to refile with supporting documentation required under Fla.R.Civ.P. 1.210(c). The supporting documentation referred to would be documentation showing that appellant did not have the powers listed in Rule 1.210(c) and could not, therefore, represent the trust by himself.

Appellant first contends that the provisions of § 47.061, Florida Statutes, relating to venue in suits on promissory notes do not cover supplementary proceedings filed pursuant to Chapter 56.29, Florida Statutes (1975); that venue in supplementary proceedings under § 56.29 may be (and in this instance is) in a county other than where the principal action was maintained. We disagree. § 56.29, Florida Statutes, provides in subsection (1) thereof as follows "When any sheriff holds an unsatisfied execution, the plaintiff in execution may file an affidavit so stating and that the execution is valid and outstanding and thereupon is entitled to these proceedings supplementary to execution."

There is nothing in the wording of the above quoted provision of the statute which indicates that a new suit on supplementary proceedings after judgment may be filed in another county. Subsection (2) of § 56.29 provides as follows:

"On such plaintiff's motion, The court shall require the defendant in execution to appear Before it or a commissioner or a master at a time and place specified by the order in the county of the defendant's residence to be examined concerning his property." (Emphasis supplied.)

Under the above statute, the court (obviously the original court) requires the defendant in execution to appear Before it or a master. § 56.29(9) emphasizes the broad purpose of supplementary proceedings and the broad discretion of the court as follows:

"The court may enter any orders required to carry out the purpose of this section to subject property or property rights of any defendant to execution."

This broad purpose was emphasized in State v. Viney, 120 Fla. 657, 163 So. 57 (1935), where the Supreme Court stated that proceedings supplementary were:

". . . intended to give the circuit court broad discretionary powers to carry out the full intent and purpose of the proceedings supplementary to execution law which was to Confer on circuit courts the right to subject any and all property, or property rights of any defendant in execution, however fraudulently conveyed, covered up, or concealed, the same might be, Whether in the name or possession of third parties...