West 132 Feet, Etc., v. City of Orlando

Decision Date10 July 1920
Citation80 Fla. 233,86 So. 197
PartiesWEST 132 FEET, etc., et al. v. City of Orlando[*]
CourtFlorida Supreme Court

Suit by the City of Orlando and another against the west 132 feet of the south half of the southeast quarter of the southwest quarter of section 26, township 22 south, of range 29 east and others. Judgment for plaintiffs, and defendants appeal.

Affirmed.

See also, 76 Fla. 660, 80 So. 757.

Syllabus by the Court

SYLLABUS

Description in caption of citation in proceedings under tax laws of a city aided by description in body. An uncertain description of property in the caption of a citation in a proceeding in rem may be aided, and the notice made sufficient, by a correct description in the body of the citation, since reasonable diligence would require the reading of the entire notice.

Where petition shows prima facie right, defendant must set up his claim fully. Where a petition for writ of assistance shows a prima facie right in petitioner, it becomes the duty of a defendant in his answer to set up his rights and claims fully, and in such manner that his defense may be understood by the petitioner and by the court.

Procedure where petitioner fails to reply to defenses in answer stated. If an answer to a petition for writ of assistance sets up a defense, and the petitioner fails to reply thereto proper practice requires the court to take as true the facts stated in the answer; but, if the answer shows no right on the part of the occupant to contest the petitioner's claim of right to possession, the court may ignore the answer and award the writ.

When regularity of proceedings cannot be put in issue by defendants in writ. The purchaser of property at a public sale under a foreclosure decree filed his petition for writ of assistance against parties who were strangers to the foreclosure proceedings, and who by their answer failed to show that they had any interest in the property, except that of bare possession, and failed to show when such possession began, but who assumed to defend on behalf of others as alleged owners. Held that, where the court in the foreclosure proceeding appeared on the face of the record to have had jurisdiction, the regularity of such proceeding could not be put in issue by such persons in resisting the application for a writ of assistance.

When court cannot look behind record to impeach jurisdiction; courts bound to notice limits of authority. Courts are bound to take notice of the limits of their authority, and if want of jurisdiction appears at any stage of the proceeding, original or appellate, the court should notice the defect and enter an appropriate order; but where the jurisdictional steps prescribed by statute in a proceeding in rem appear on the face of the record to have been regularly taken, the court has no power to look behind the record into alleged extrinsic facts tending to impeach the jurisdiction, at the instance of one who shows no title or interest in the property, other than bare possession, and who seeks to raise such question on behalf of others.

Appeal from Circuit Court, Orange County; James W. Perkins, Judge.

COUNSEL

Jones & Jones, of Orlando, for appellants.

Massey & Warlow, of Orlando, for appellees.

OPINION

REAVES Circuit Judge.

Upon petition for rehearing it was suggested that the description of the property named as defendant, while appearing in the caption or style of the cause, in the citation as published, as indicated in our former opinion, the property is correctly described in the body of the citation. Upon examination we found this to be true, and a rehearing was granted, and counsel for the respective parties given time to file briefs upon the question of jurisdiction. The citation or notice, as published is as follows:

'Bill in Chancery to Enforce Tax Lien.
'City of Orlando

v.

The West 132 Feet of South Half of Southeast Quarter of Southwest Quarter Southwest Quarter of Section 26, Township 22 South, Range 29 East.

'To All Whom it May Concern: Upon application to the city solicitor it is hereby ordered that on or before the October rule day next, being October 4, A. D. 1915, in said court, you appear to and answer the bill filed and set forth in the nature of your respective interests in, rights to, or liens upon real estate situate in the city of Orlando, and described as in the bill as the west 132 feet of the south half of southeast quarter of southwest quarter of southwest quarter of section 26, township 22 south, range 29 east. It is further ordered that this order be published in the South Florida Sentinel, a newspaper published in said city, once a week for four successive weeks prior to said rule day.

'Witness my hand and seal of said circuit court this 1st day of September, A. D. 1915.

'B. M. Robinson,

'Clerk Circuit Court, Orange County,

'By M. A. Howard, Deputy Clerk.'

The statute providing the terms and period of publication of the order in such cases is as follows (pages 311, 312, Acts 1905):

'Upon application of the city solicitor, the clerk of the circuit court shall make an order of publication of notice to all persons having any interest or right, whether as owners, lienholders or otherwise in such real estate, which notice shall be addressed 'to All Whom It may Concern,' requiring them on or before a rule day to be fixed by such order to appear to and answer such bill and set forth the nature of their respective interests in, rights to and liens upon the said real estate, which order shall be entitled with the names of the parties named in the bill and shall contain a description of the real estate and shall be published in a newspaper published in the city once a week for any four consecutive weeks prior to the sale [evidently meant 'rule'] day fixed in such order, and in all suits in which such order and publication shall be made the interests, rights, and liens of all persons in, to and upon such real estate, whether such persons be named as defendants in the bill or not, shall be foreclosed and their respective interests, rights and liens shall by the proceedings be affected thereby to the same extent as though they were named and duly served and had appeared as parties defendant in such suit.'

There being no party named as defendant, except the land proceeded against, the attempt was undoubtedly made to describe the land in the caption of the citation, and then again in the body of the citation. Speaking of the description used in the caption, we held that it was so uncertain as not to be reasonably calculated to bring the proceedings to the...

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    ...the proceeding, original or appellate, the court should notice the defect and enter an appropriate order." West 132 Feet v. City of Orlando, 80 Fla. 233, 86 So. 197, 198-99 (1920). We have no occasion here to decide the questions the appellants argue: whether the trial court has jurisdictio......
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