State Ex Rel. Phoenix Tax Title Corp. v. Viney

• Decision Date: 29 August 1935
• Citation: 163 So. 57,120 Fla. 657
• Parties: STATE ex rel. PHOENIX TAX TITLE CORPORATION et al. v. VINEY, Judge et al.
• Court: Florida Supreme Court

163 So. 57

120 Fla. 657

STATE ex rel. PHOENIX TAX TITLE CORPORATION et al. v. VINEY, Judge et al.

Florida Supreme Court

August 29, 1935

Original mandamus proceeding by the State of Florida, on the relation of the Phoenix Tax Title Corporation and others, against John I. Viney, Judge of the Circuit Court, and others.

Motion to quash rule nisi granted, and rule discharged.

COUNSEL Erle B. Askew, of St. Petersburg, for relators.

Van Fleet & Miller, of St. Petersburg, for respondents.

OPINION

BUFORD Justice.

This is an original proceeding in prohibition in which a circuit judge and the plaintiff in the court below are made respondents.

It appears from the record that Agnes A. Barris brought suit against Florida Bond Exchange, a corporation, being an action at law upon a declaration in two common counts. To the declaration was attached a statement of account between Florida Bond Exchange, a corporation, as debtor, and Agnes A Barris for the proceeds of certain bonds sold by defendant for the plaintiff for the sum of $2,254.03. After pleas had been filed the plaintiff filed a replication in which she alleged that the defendant, acting for and on behalf of the plaintiff, sold for the account of the plaintiff certain described bonds; that plaintiff did not deliver the money to the defendant; and that the amount received for the bonds was stated in the account on which plaintiff sued. Plaintiff recovered judgment for the amount stated at 8 per cent. interest from date of sale. Judgment was entered; execution was issued and returned unsatisfied.

Plaintiff's attorney filed affidavit for an examination of the defendant corporation, and in the affidavit alleged that John A Thompson was president of defendant corporation during the period of time when the transactions, out of which the cause of action accrued, transpired.

The court, thereupon, entered an order requiring John A. Thompson to appear and answer under oath such questions as might be propounded to him concerning the assets of defendant corporation and the disposition of such assets. Complying with this order, Thompson appeared before the court and gave his testimony. He testified that he was not a stockholder in the corporation; that he did not sell the bonds to the plaintiff; that he did not have the records of the corporation; that the money received for the sale of bonds was received by the defendant Florida Bond Exchange, went into its till, and was credited to the account of the plaintiff Barris.

Thereafter several checks were drawn against the Florida Bond Exchange in whose account the moneys received from plaintiff's bonds had been deposited, amongst which checks was one for $3,455.10 issued to A. M. Anderson as receiver of the First National Bank of St. Petersburg for the final payment of certain stock of Hibbs Fish Company. The stock of Hibbs Fish Company was sold to Phoenix Finance Corporation for a consideration of $21,000. After Phoenix Finance Corporation bought the stock of Hibbs Fish Company, Hibbs Fish Company went into bankruptcy.

After examination of relator Thompson, the court issued a rule to show cause. The rule to show cause was addressed to Florida Bond Exchange, J. A. Thompson, individually, Lorne Corsand, individually, Phoenix Finance Corporation, and Phoenix Tax Title Corporation. The order was as follows:

'It is therefore, ordered, adjudged and decreed, that the defendant Florida Bond Exchange, J. A. Thompson, individually, Lorne Corsaut, individually, Phoenix Finance Corporation, insofar as it has assets in Florida, either in its name or in the name of Phoenix Tax Title Corporation or in the name of any other, and Phoenix Tax Title Corporation, jointly and severally, pay to plaintiff her said judgment, amounting to $2254.03, as of April 9th, 1932, being the amount of judgment herein, together with interests thereon and costs therein aggregating $2782.15 as of the date of the issuance of execution of said judgment, December 10th, 1934, plus cost of this proceeding and interest to date of payment, or show cause, if any you have, before this Court on the 28th day of March, 1935, at 9:30 o'clock in the forenoon, at Chambers in St. Petersburg, Florida, why you should not pay; and it is further ordered that a copy of this order be served upon said J. A. Thompson, and Lorne Corsaut, individually, and a copy served upon said Phoenix Finance Corporation and a copy served upon said Phoenix Tax Title Corporation and upon Florida Bond Exchange within 3 days from the date hereof, by mailing copies of this order to each of the individuals named, and to J. A. Thompson, as President of each of the corporations herein named, a copy for each of said corporations, addressing said Corsaut at his last known place of residence, and addressing said J. A. Thompson and said corporation at the business address of said J. A. Thompson in the City of St. Petersburg, Florida.'

The relators appeared and moved to quash the rule to show cause because it was alleged the court was without jurisdiction over the respondents. It was contended that the rule did not show any reason at law or equity why respondents should be called upon to pay the judgment. It was also contended that it does not appear that the court had ever acquired jurisdiction of respondents.

The court entered order denying motion. Thereupon return was filed by Phoenix Tax Title Corporation by adopting the return made by John A. Thompson which was also filed. It is not necessary to set up here the allegations of the return.

The plaintiff in execution then filed an amended reply to the return. The allegations of that reply are not material to the issues here, as will be shown later.

The respondents named in the rule nisi filed motion to quash the rule and to dismiss the entire proceeding on four grounds, which are also not necessary to be delineated here. The court entered an order overruling and denying motion to quash and then the petition for prohibition was filed in this court.

Since the filing of the petition...