Simms v. City of Tampa
| Decision Date | 30 October 1906 |
| Citation | 52 Fla. 641,42 So. 884 |
| Parties | SIMMS et al. v. CITY OF TAMPA et al. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Hillsborough County; Joseph B. Wall Judge.
Bill by the city of Tampa and others against Lenora T. Simms and others. Decree for plaintiff was reversed on appeal, and appellant filed petition against Charles Wright and others requiring them to restore possession of the land sold under the decree. Petition for writ of restitution denied, and petitioners appeal. Affirmed.
Syllabus by the Court
It is well settled that restitution of possession of real estate on reversal of a judgment affecting it, can be compelled only from parties to the record, or from their beneficial assignees, or, in case of the death of the execution plaintiff, from his executor or administrator. Restitution cannot be compelled from third persons, strangers to the record, who were bona fide purchasers at a sale under process dependent upon a judgment subsequently reversed, or who acquired bona fide collateral rights thereunder, and their rights are in no way affected by the subsequent reversal of the judgment.
Particularly should restitution be denied as against a stranger to the record, when sought in a summary manner by motion, rule, or petition.
Solon B. Turman and F. M. Simonton, for appellants.
Macfarlane & Glen and John P. Wall, for appellees.
The municipality the city of Tampa on August 12 1903, filed its bill in the circuit court of Hillsborough county in equity against the appellants and one F. Rumeli to enforce and foreclose various liens that it held or claimed upon a certain lot of land located in said city of Tampa for city taxes assessed against said lot. This proceeding resulted in a decree in favor of the city, in which a master was appointed and authorized to sell the lot at public sale for the collection of the amount adjudged to be due thereon for such taxes, and to report his doings in the premises to the court. The ordered sale was made by the master and reported to the court, and was confirmed and a deed ordered to be made to the purchaser. This purchaser was the appellee herein, Charles Wright, who was a stranger to the proceedings under which the sale was made. Upon receiving his deed to the premises from the master, Charles Wright was voluntarily let into possession of the premises by the appellants herein, and thereupon sold and conveyed the lot to the appellee the Jetton-Dekle Lumber Company, and put them in full possession thereof. In the meantime the appellants herein and their codefendant F. Rumeli took their appeal to this court from the decree ordering the sale, but without supersedeas of said decree. This court, at its June term, 1904, reversed said decree upon the ground that the defendant therein F. Rumeli had not been properly served with process, either actually or constructively. Rumeli v. City of Tampa, 48 Fla. 112, 37 So. 563. Upon the transmission of the mandate from this court, the appellants herein filed their petition in the said cause theretofore pending against them in the circuit court of Hillsborough county, wherein they set forth in substance the foregoing facts, and expressed their readiness and willingness to pay the amount adjudged against said lot of land for taxes thereon less the amount of the rents and profits thereof, and prayed that the appellees Charles Wright and the Jetton-Dekle Lumber Company might be required to restore to them the possession of the said lot of land, and to account for the rents and profits received by them therefrom. This petition prayed no sort of process to bring the new parties, Charles Wright and the Jetton-Dekle Lumber Company, before the court, and no process of any kind seems from the record to have been issued or served upon them. The Jetton-Dekle Lumber Company filed its protest against the assumption of jurisdiction over it by the court in such proceeding upon the grounds in substance (1) that it is not and never was a party to the cause in which said petition was filed, or in any wise connected therewith; (2) that upon the facts stated in said petition the petitioners are not entitled to the order for restitution prayed for as against it; (3) that a writ of restitution cannot issue as against it in such a proceeding; (4) that the remedy against this respondent, upon the facts set forth in said petition is an action of ejectment, where it will...
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