Green v. HoodGreen v. Hood
- Reporters:
- Before:
- Connell
This is an appeal by the appellant, as Comptroller of the State of Florida, from an order denying his motion to vаcate and set aside a decree previously entered by the trial court under the following circumstances :
L. S. Hood, plaintiff below and one of the appellees here, filed suit to enjoin the appel-lee McCall, аs Sheriff of Lake County, Florida, from levying on an execution issued upon a tax warrant filed with the Clerk of the Circuit Court of Lake County, Florida, under Sec. 212.15, Fla.Stat.1955, F.S.A. The Comptroller of the State of Florida, appellant here, was not made а party to the injunction proceeding. No
Some six months later, the apрellant filed in the cause a motion to vacate an4 set aside the final decree, alleging, among .others, that the Comptroller was a necessary party to the injunсtion proceeding and that neither he nor his predecessor in office had notice of the proceеding until months after the entry of the final decree. The lower сourt denied the motion and this appeal followed.
Thеre can be no doubt that the. Comptroller is a necеssary and indispensable party to any proceeding tо enjoin the collection of the tax here involved. Whеn the tax warrant is issued by him and filed and recorded in the office of the Clerk of the Circuit Court of the county in which the tax debtor has property, it becomes a lien upon the taxрayer’s property “in the same manner as a judgment duly docketed and recorded in .the office of such clerk оf the circuit court.” Sec. 212.15(3), Fla.Stat. 1955, F.S.A. Execution is issued thereоn “the same as on a judgment”. Ibid. While there is some authority to thе contrary, this court follows the majority of courts in holding that аn execution or attachment creditor or other рerson for whom an officer acts in seizing or selling proрerty is not only a proper but a necessary party tо a suit against such officer to enjoin such seizure or salе. See Mast v. Baker,
The appellant properly рroceeded by motion to vacate the decrеe, rather than by an independent proceeding in equity, аlthough the latter method of attack might also have been proper. See Freeman on Judgments (5th Ed.) Sec. 260; cf. Caрers v. Lee, Fla.1957,
For the reasons stated, the оrder appealed from should be and it is hereby reversed and the cause remanded for further proceedings not inconsistent herewith.
Reversed and remanded.