Sherbill v. Miller Mfg. Co.

• Decision Date: 27 July 1956
• Citation: 89 So.2d 28
• Parties: Joe SHERBILL and Hazel Sherbill, his wife, Petitioners, v. MILLER MANUFACTURING COMPANY, Inc., and Thomas J. Kelly, as Sheriff of Dade County, Florida, Respondents.
• Court: Florida Supreme Court

Page 28

89 So.2d 28

60 A.L.R.2d 1445

Joe SHERBILL and Hazel Sherbill, his wife, Petitioners, v. MILLER MANUFACTURING COMPANY, Inc., and Thomas J. Kelly, as Sheriff of Dade County, Florida, Respondents.

Supreme Court of Florida, Special Division B.

July 27, 1956.

Edward S. Resnick, Courshon & Courshon and William Malcolm, Miami Beach, for petitioners.

Sibley & Davis and Thomas H. Barkdull, Jr., Miami Beach, for respondents.

O'CONNELL, Justice.

Petitioners executed a note in favor of respondent. They failed to pay the sums due thereunder and respondent reduced the note to judgment in an action brought in the Circuit Court, Dade County. Execution issued on said judgment and pursuant thereto the Sheriff of said county levied on the real property hereinafter described. Prior to sale of said property the petitioners, as provided in Sec. 222.02, Florida Statutes, F.S.A., filed an affidavit claiming the benefits of homestead and designating the real property levied on as their homestead and therefore exempt from forced sale. For this reason, the property was not sold.

Thereafter respondent filed a complaint in chancery, which action we shall refer to as the first chancery suit, in which complaint it alleged the facts above recited and that it had made diligent search and inquiry to locate other property of petitioners, but that it had found no property in this jurisdiction belonging to petitioners except the property hereinafter described. Respondent did not allege that said real property was not the homestead of petitioners, in fact it admitted, in said complaint and in the brief filed with the chancellor, that the property was the homestead of petitioners. Respondent alleged and contended, in its complaint, that the petitioners were

'* * * not entitled to designate this property as homestead and receive the benefits of the laws of this State relating to such as against this Plaintiff [respondent here] which received from said defendants a waiver of such exemption at the time it parted with a consideration for the aforementioned note, and that said instruction was executed in accordance with the laws of the State of Virginia.'

Respondent prayed that the court decree '* * * that said property of the Defendants is not entitled to exemption from levy and forced sale under execution as the Defendants [Petitioners here] homestead as against a Writ of Execution issued by this Plaintiff * * *.' [Emphasis ours.]

The note which was reduced to judgment in the law action contained a waiver in the following words:

'* * * The makers and endorsers of this note hereby waive the benefit of their homestead exemption as to this debt * * *.'

Petitioners were properly served with process, failed to appear or plead, a decree pro confesso was entered against them and a final decree was entered in which the chancellor found the sum of $6,495.50 to be due by petitioners to respondents and ordered execution to issue therefor. In the decree the chancellor also said:

'2. That Lot Five (5), in Block Sixteen (16), of Biscayne Beach Second Addition, according to the Plat thereof, recorded in Plat Book 46, at Page 39, of the Public Records of Dade County, Florida, be, and the same is hereby declared to be subject to an execution and that after such execution it may be sold by the Sheriff [to an execution and that after such execution is may be sold by the Sheriff] under the provision of the law governing execution sales, and further that the Defendants, Joe Sherbill and Hazel Sherbill, are not entitled to designate this particular property as homestead and thereby exempt said property from levy of the Plaintiff, who is a judgment creditor of the Defendants.'

A writ of execution issued pursuant to the decree. The Sheriff of said county levied on the subject property and advertised same for sale to satisfy the terms of said decree.

A few hours prior to the sale of the property by the Sheriff, petitioners filed a petition in chancery in the Circuit Court, Dade County, which suit we will refer to as the second chancery suit, and prayed said court to permanently enjoin the forced sale of said property; and to declare null and void the decree, and the lis pendens filed in the first chancery suit.

The chancellor held that the decree in the first chancery suit was res adjudicata as to the matters asserted by petitioners and denied the injunction, but entered an order staying the sale, conditioned upon the prosecution of a petition...