Tax Securities Corp. v. Bird

• Decision Date: 26 April 1934
• Citation: 155 So. 155,114 Fla. 840
• Parties: TAX SECURITIES CORPORATION v. BIRD et al., Judges.
• Court: Florida Supreme Court

155 So. 155

114 Fla. 840

TAX SECURITIES CORPORATION v. BIRD et al., Judges.

Florida Supreme Court

April 26, 1934

Rehearing Denied June 15, 1934.

En Banc.

Original mandamus proceeding by the Tax Securities Corporation against John U. Bird and T. Frank Hobson, as Judges of the Circuit Court for the Sixth Judicial Circuit of Florida, Pinellas County.

Alternative writ quashed.

COUNSEL Edwin Brobston, of Tampa, for relator.

Hugh L McArthur, of Tampa, for respondents.

OPINION

DAVIS Chief Justice.

This is an original proceeding in mandamus instituted in this court by the relator, Tax Securities Corporation, against O. L Dayton, as judge of the circuit court in and for the Sixth judicial circuit of Florida, Pinellas county. The petition and writ recite that the relator exhibited its bill of complaint in the circuit court of Pinellas county for the foreclosure of certain tax certificates under the provisions of chapter 14572, Acts 1929, against certain real estate therein described, and that among the defendants to the cause was the First National Bank, a national banking corporation of Sandersville, Ga., which is alleged to be the owner of a judgment that constitutes a lien against the same real estate in the foreclosure proceedings of complainant.

Relator shows that it has complied with chapter 11829, Acts of 1927 which is a part of the statutes of the state of Florida with reference to obtaining service against corporations, but that notwithstanding same, the respondent O. L. Dayton, as judge of said court, has refused to issue the order of publication presented for service against the corporation above mentioned.

The respondent justifies the refusal to issue said order of publication upon the ground that the statutes of Florida do not permit such service of process by publication against a nonresident trust or banking company which is not doing or has not done business in this state.

Before the briefs were filed herein and after the cause was at issue, the Honorable O. L. Dayton resigned as circuit judge of the Sixth judicial circuit, and substitution proceedings appear in this cause substituting the Honorable John U. Bird and T. Frank Hobson as respondents. The hearing is upon a motion for peremptory writ against the substituted respondents.

The return filed in this cause brings up for consideration the sole question as to whether or not any statute in the state of Florida authorizes service of process by publication against a nonresident trust or banking corporation which is not doing business in the state and has not done business in the state, but is possessed of an interest in or claim against land which is sought to be subjected to a tax foreclosure under chapter 14572, Acts of 1929, Laws of Florida.

In the case of Rome Insurance Company, a Georgia Corporation, v. J H. Corbett, decided December 9, 1913, and reported in 66 Fla. 438, 63 So. 833, 834, this court upheld as valid an affidavit and order for constructive service of process published against a nonresident foreign insurance company and against a nonresident national bank. In that case the affidavit upon which the order for constructive service was predicated read as follows, as shown by the transcript on file in the archives of this court:

'In the Circuit Court, Hamilton County, Florida,

'In Chancery.

'J. H. Corbett, Complainant, vs. Rome Insurance Company et al., Defendants. Bill for Relief.

'State of Florida, Hamilton County

'Before me personally appeared J. H. Corbett, who being duly sworn, on oath, says: that affiant is complainant in the above entitled cause; that the defendant Rome Insurance Company is a corporation organized and existing under and by virtue of the laws of the State of Georgia, with its principal office and place of business in the City of Rome, in Floyd County, State of Georgia, and the defendant, American Bank and Trust Company is a corporation organized and existing under and by virtue of the laws of State of Georgia, with its principal office and place of business in the City of Rome, in Floyd County, State of Georgia, and the defendant First National Bank of Rome, Georgia, is a corporation organized and existing under and by virtue of the laws of United States, with its principal office and place of business in the City of Rome, in Floyd County, State of Georgia, that neither of said corporations is a resident of or domiciled in the State of Florida, that there is no person in the State of Florida the services of a subpoena upon whom would bind such defendants, or either of them.

'J. H. Corbett.

'Sworn to and subscribed before me this 3 day of Jan. A. D. 1913.

'J. B. Wetherington, C. C. C. [Seal]'

The constructive service in that case being against Rome Insurance Company, American Bank & Trust Company, and First National Bank of Rome, Ga., each of these companies specially moved to quash the constructive service on the following grounds:

'1st. Because on account of the attempted and pretended service by publication, the court does not acquire jurisdiction of said defendants.

'2nd. Because said service is defective and not such as is required by law, in that the defendants are foreign corporations, not resident in Florida, and have not received personal...