Harris v. City of Sarasota , 132 Fla. 568 ( 1938 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

STATEMENT The order appealed from is as follows:

"This cause coming on to be heard upon the motions of Lucile Harris, C.F. Walker and J.M. Christy to set aside and vacate the final decree of foreclosure, sale, confirmation and deed issued pursuant thereto in this cause, and the same having been argued by counsel representing the respective parties and duly considered by the Court.

"The Court is of the opinion that this suit having been brought under the provisions of Chapter 14403 of the Acts of 1927, known as the Charter of the City of Sarasota, the same constitutes a proceeding in rem,

"That the motion of Lucile Harris fails to show that no copy of said notice was mailed to or received by her and that she is, therefore, not entitled to raise the question made by her motion; that, though the movant, J.M. Christy, was and is the holder of a mortgage covering certain property described in the said suit, and the movant, C.F. Walker, was and is the holder of a judgment against an owner whose property was described in said suit and, though neither was mailed a notice of such proceedings, the Court is nevertheless of the opinion that the posting, publishing, and the certificate of the Clerk showing the mailing of copies of the notice to the owners, was under the holdings in the cases of City of Coral Gables v. Certain Lands, etc., 149 So. 2d 36, and Fleming v. Fleming, 177 So. 2d 607, sufficient notice to all parties interested in any of the lands described in said proceedings whether as owner, mortgagee, judgment holder or otherwise, and gave the Court jurisdiction of the land and all parties interested therein and that the said Act and the proceedings thereunder are not in violation of either the State or Federal Constitutions.

"The Court is further of the opinion that the said Act is not in conflict with Sections 20 and 21 of Article 3 of the Constitution of the State of Florida.

"The Court further finds that the error complained of as to the Clerk's certificate of parties to whom copies of said order were mailed constituted error which made the proceeding voidable only.

"IT IS, THEREFORE, ORDERED, ADJUDGED and DECREED that the said motions be and the same are hereby severally overruled and denied.

"DONE AND ORDERED at Sarasota, Florida, this 8th day of February, A.D. 1938.

"W.T. Harrison "As Judge of the Above Court."

The grounds of the motions to vacate are:

"1. The provisions of Section 38 of the said Act known as the Charter of the City of Sarasota are in direct conflict with the due process clauses of the Constitution of the United States and the Constitution of the State of Florida.

"2. That Section 38 of the Charter of the said City of Sarasota is in fact a special or local law and in conflict with Sections 20 and 21 of Article III of the Constitution of the State of Florida.

"3. Under the proceedings had under the said Act the Court did not acquire jurisdiction of this movant or of his property by reason of the fact that no personal service was had upon him, though he was then a resident of and living in the City of Sarasota, Florida.

"4. The Clerk failed to mail to each of the parties defendant to said bill a copy of the notice as required by Section 38, but mailed "a copy of said notice to each of the defendants whose post office address is known and stated in said notice."

Section 38, Chapter 13403, Acts of 1927, contains the following:

"Sec. 38. All delinquent taxes upon real estate, due the City of Sarasota, and including those represented by unpaid and uncancelled tax certificates owned by the City of Sarasota, shall only be collected by a bill in equity; said bill to contain a description of each and every piece, parcel, or lot of land against which any tax has been assessed and which has become delinquent, and whether tax certificates have been issued against said property or not; also the amount of the assessment or assessments, the year or years for which said taxes may be delinquent, the name of the owner thereof, or the person to whom last assessed, and said bill shall not be objectionable because of the multiplicity of parties or of the number of the pieces, parcels, or lots of land covered thereby. Upon the filing of said bill it shall be the duty of the Clerk of the Circuit Court to issue a notice substantially as follows:

"NOTICE "In the Circuit Court, Sarasota County, Florida, in Chancery.

"The City of Sarasota, Complainant, v. Delinquent Taxes, Etc., Defendant.

"Notice is hereby given to all persons having or claiming any interest in the following described lands that a bill has been filed in the above styled court, for the purpose of collecting the delinquent taxes on the lands situated within the City of Sarasota, in said Sarasota County, Florida, said lands together with the amount of delinquent taxes, interest, penalties and the owners thereof or the person to whom last assessed being described and set out as follows: to-wit: (Here follows a description of the lands with the amount of the tax, and owners, or person to whom last assessed.) Any and all persons or corporations interested in said lands are hereby required to be and appear at the office of the Clerk of said Court on or before the first Monday of __________, A.D. 19__, to answer the said bill, else the same will be taken as confessed.

"This notice shall be published for four consecutive weeks in a newspaper published in the City of Sarasota the first publication to be the ___ day of ________, A.D. 19__.

"_________________________ "Clerk Circuit Court.

"A copy of the notice shall be mailed to each of the parties defendant to said bill whose post office shall be known and stated in said bill; also a copy of said notice shall be posted at the front door of the Court House, and also published for four (4) consecutive weeks in a newspaper to be designated in said notice. The certificate of the Clerk that said notice was mailed to each of said defendants whose post office address is known and stated, that a copy was posted and likewise published as above provided, shall be filed in said cause, which shall be sufficient proof thereof to give the Court jurisdiction over the parties to said bill, both known and unknown, and the subject matter thereof. And thereafter said cause shall be governed in its prosecution to final decree and sale in accordance with the rules and practices as other equity suits, and the Court shall upon the final hearing, decree whether said delinquent tax shall be collected, the amount thereof, as against each piece, parcel, or lot of land with interest and penalties, fix a reasonable attorney's fee to be allowed the attorney representing the City, which fee and the costs of said proceeding shall be pro rated against each piece, parcel, or lot of land in proportion to the amount of tax due thereon and in default of the payment thereof for thirty days from the date of said decree, direct that said lands shall be sold at public outcry to the highest and best bidder for cash, and appoint a master or shall authorize and empower the Tax Collector to make said sale, after having given thirty days' notice of the time and place of said sale by publication; and at said sale the Master or Tax Collector as the case may be, shall sell each piece or parcel or tract of land separately and execute a deed therefor; but before any deed or deeds shall be made to the purchaser or purchasers, said sale or sales shall be repeated to the Court for confirmation.

"In the event any piece, parcel, lot, or tract of land against which a delinquent tax is being enforced in accordance with the provisions of this law, should fail to bring at said sale an amount sufficient to pay the delinquent taxes with interest and penalties and its pro rata share of the costs of said suit and attorney's fee, the officer making the sale shall bid the same in for and on behalf of the City of Sarasota; but if at said sales, any piece, parcel, lot or tract of land shall sell for more than enough to pay the delinquent tax assessed against said land with interest penalties and its pro rata share of costs and attorney's fees, then and in that case, the surplus shall be paid over to the Treasurer of said City who shall enter the same upon a record to be known as the ``Delinquent Tax Record,' which record shall show the date of sale, the owner, or persons to whom assessed, to whom sold, the description of each piece of property, the amount of the tax, interest, costs, and attorney's fee chargeable against it and the amount of the surplus, which shall be kept separate from other funds of the City for a period of two years, unless sooner claimed by the parties entitled thereto. Upon said surplus being turned over to the Treasurer as aforesaid, he shall notify the persons entitled to the same, if their post office address shall be known, deducting therefrom the cost of such notification. If said surplus is not claimed by and paid to the person or persons entitled thereto within two years, it shall be paid into the General Fund of the City.

"A decree and sale of any land under the provisions of this law shall after the expiration of six months from the date of said sale, forever bar the equity of redemption of said land from said sale, and the deed executed and delivered to the purchaser at said sale shall vest in said purchaser the fee simple title to the land described therein, subject only to the right of redemption hereinabove provided for, but the owner in order to redeem said land, shall pay to the said purchaser or holder under said sale with interest at the rate of eight per centum per annum." This appeal is from an order denying a motion to vacate, on the theory that they, are void, a final decree of foreclosure, sale, confirmation and deed made in in rem proceedings against lands for the enforcement of delinquent municipal tax payments. The sale ordered by the final decree was made and also confirmed by the Court. No appeal was taken from the final decree. The proceedings are in rem under the statute.

Taxation is essential to the maintenance of sovereign government and the law charges property owners with notice of the operation of tax laws. Where taxes are not paid when due under the law, and judicial proceedings in rem are duly invoked to enforce tax payments, those owning the title to, or any interest in, the property proceeded against, whether resident or non resident, are bound by the in rem decree rendered, when thenotice of the proceedings required by law to be given, is, under the law, actually or constructively given to such owners by anyauthorized means that is sufficient to satisfy the organic requirements for due process and equal protection of the laws.

An action in persona requires service of process upon, or the waiver of service or appearance in the cause by, resident defendants; and requires authorized constructive service ofprocess by publication or otherwise or waiver of service or appearance in the cause, in order to acquire jurisdiction to proceed in the cause against such defendants respectively.

An action in rem requires seizure or its equivalent of property within the jurisdiction of the court and the giving of prescribed reasonable and fair notice of the action against described property and of the date and place of hearing, in order to proceed against the property described in the notice. See State,ex rel., v. Smith, 126 Fla. 72, 170 So. 2d 440; City of Miami v. Certain Lands, 126 Fla. 781, 171 So. 2d 798.

An action quasi in rem requires a seizure of property within the jurisdiction of the court or its equivalent and service ofprocess or its waiver, or appearance in the cause, by resident defendants, and duly authorized constructive service of process by publication or otherwise, or waiver of service or appearance in the cause, in order to acquire jurisdiction to proceed in the cause against such defendants respectively, as well as against the property.

The law recognizes varying conditions in human affairs and makes many additional supplementary and exceptional provisions as to acquiring jurisdiction of defendants in actions at law and in equity and other judicial proceedings. 1 Am. Jur. 436; 1 C.J. 929, 1041; Corpus Juris Secundum p. 943, 1148, 1151. See Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565; Freeman v. Alderson,119 U.S. 185, 7 Sup. Ct. 165, 30 L. Ed. 372; Ontario Land Co. v. Yordy,212 U.S. 152, 29 Sup. Ct. 278, 53 L. Ed. 449; 24 C.J. 1172-5.

This judicial proceeding to enforce the collection of taxes isin rem. City of Coral Gables v. Certain Lands Upon Which Taxes Are Delinquent, 110 Fla. 189, 149 So. 2d 36. See also City of New Smyrna v. Certain Lands, 128 Fla. 543, 176 So. 2d 57; West 132 Ft. v. City of Orlando, 80 Fla. 229, 91 So. 2d 369; City of Miami v. Certain Lands, 126 Fla. 781, 171 So. 2d 798.

In statutory provisions duly authorizing in rem proceedings, it is not necessary to expressly denominate them as being in rem, when, as here, they are in fact and in law in rem against lands for delinquent taxes. Nor is it essential in such cases for the statute, "by special language, to obviate the necessity of serving resident defendants with summons in chancery," particularly when the statute prescribes a sufficient notice to be served on the defendants "to give the court jurisdiction over the parties to said bill, both known and unknown, and the subject matter thereof." If adequate notice to defendant is provided for, it is not material that the notice is also required to be posted at the front door of the court house of the county wherein the land is located. Nor is it necessary for the statute to require the bill of complaint to contain the names of mortgagees or other lien holders, upon the lands, when the proceeding is in rem and the statute specifically requires the bill to contain "the name of the owner thereof, or the person to whom last assured." Fleming v. Fleming,130 Fla. 264, 177 So. 2d 607. The notice given to defendants as required by the statute affords due process of law. City of Coral Gables v. Certain Lands, 110 Fla. 189, 149 So. 2d 36; City of Miami v. Certain Lands, 126 Fla. 781, 171 So. 2d 798.

The due publication of the required sufficient notice to defendants having been made and adequate proof thereof having been made, the mere fact that the Clerk's certificate as to mailing copies to the defendants, may be defective, and not "sufficient proof," if taken alone, of the fact of due mailing of notice under the statute, that does not on this appeal from an order refusing to vacate the final decree, show a lack of jurisdiction of the court over defendants in the foreclosure decree. There is some evidence that notices were duly mailed and there is nothing to show the contrary. That is sufficient on this appeal. No appeal was taken from the final decree.

Affirmed.

WHITFIELD, TERRELL, BROWN, BUFORD and CHAPMAN, J.J., concur.

ELLIS, C.J., not participating.