West 132 Feet v. City of Orlando
West 132 Feet v. City of Orlando
Opinion of the Court
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, vs. . 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
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 (pp. 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, lien-holders 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.”
Turning now to the multitude of assignments of error, thirty-five in all, we are confronted with what seems to be an insuperable obstacle to the consideration of any of them. It does not appear that the parties against whom 'the writ of assistance was issued; namely, Virginia Burns and John Jones, have any interest whatever in the property involved. The petition says that these parties are in possession of the property and their answer admits
The petition shows a prima fade right of possession and it was the duty of the defendants, in their answer, to set up their rights and claims fully and in such manner that their defense, if they had any, might be understood by the petitioner and by the court. Gorton v. Paine, 18 Fla. 117.
And if the answer had set up a defense and the petitioner had failed to reply thereto, proper practice would have required the court to have taken as true the facts set up in the answer. 2 R. G. L., p. 739, Sec. 13; Ann. Cas. 1913D, Note Page 1128, citing Thomas v. DeBeaum, 14 N. J. Equity, 37.
No replication was filed in this case, but inasmuch as the answer failed to show any right on the part of the occupants against whom the petition was directed to contest the purchaser’s title and claim of possession, the
It may be that due process of law was not observed aud that jurisdiction was not acquired.
Courts are bound to take notice of the limits of their authority and if want of jurisdiction appears at any stage of the proceedings, original or appellate, the court should notice the defect and enter an appropriate order. Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U. S. 379, 28 L. Ed. 162, 1 Sup. Ct. Rep. 510. 15 C. J. p. 852, Sec. 171.
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
It is hot apparent that the order of the Chancellor appealed from could prejudice the'rights of the real parties in interest, or any of them, to have the questions suggested by this record, or any other available questions adjudicated in a proper action, but in abundant caution, under the circumstances, the order appealed from should be affirmed expressly without prejudice.
Per Curiam. — The record in this cause having been considered by this court, and the foregoing opinion prepared under Chapter 7837, Acts of 1919, adopted by the court as its opinion, it is considered, ordered and adjudged by the court that the judgment herein be, and the same is hereby, affirmed, without prejudice.
Reference
- Full Case Name
- West 132 Feet of South Half of Southeast Quarter of Southwest Quarter of Southwest Quarter of Section Twenty-six, Township Twenty-two, South of Range Twenty-nine East, Virginia Burns and John Jones v. The City of Orlando, a Municipal Corporation, and John D. Ramke
- Cited By
- 14 cases
- Status
- Published
- Syllabus
- 1. 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. 2. 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. 3. 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. 4. 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. 5. Courts are bound to take notice of the limits of their authority, and'if want of jurisdiction appears at any stage of the proceeding, originál 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 view 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.