34 Fla. 219 | Fla. | 1894
John T. McMichael, the appellant, on the 6th day of January, 1890, filed his bill in equity in the Circuit ’Court of, Pasco county against James A. Grady as Sheriff of said county and against the firms of Eckman .and Vetsburg, Frank and Company, Joseph Rosenheim and Company, Meinhard Brothers and Company, Hexter and Kohn, A. Einstein Sons, Einstein and Lehman, and A. R. McCowan and Company, alleging therein that on the 5th of. December, 1889, the defendants, the above named firms, obtained final judgments against him, in sundry suits in assumpsit with ancillary attachments. That on the 21st day of December, 1889, the said defendants upon an affidavit, averring that the stock of goods that had been levied upon by virtue of the attachments in said suits was of a perishable nature, obtained an order at law from the Circuit Judge for the sale of said goods. That under said order the defendant Grady as Sheriff of Pasco county has duly advertised the said stock of goods for sale on the 6th day of January, 1890. Copy of the Sheriff’s •advertisement is attached as an exhibit to the bill. That he is the head ola family residing in this State. That his family consists of himself, wife and two small -children. That as such head of a family he is entitled to the constitutional exemption of one thousand dol
The bill prays that the defendants be restrained and •enjoined from selling or offering for sale the property
On the'6th day of January, 1890, the day the bill was filed, a court commissioner for Pasco county made-an order in said cause restraining the said sheriff from selling the personal property of the complainant advertised to be sold on January 6th, 1890, until .one-thousand dollars of said personal property shall be set apart and delivered to the said complainant as the exemption to which he is entitled under the Constitution and laws of Florida, but it was stipulated in the order that it should not be construed so as to delay the sale-of other property advertised to be sold on said day, but on the contrary that the said personal property claimed to be exempt shall be scheduled by him immediately upon the issuance of said order, the appraisal thereof as the law directs shall be had without delay, and that the sale of the other property not included in that exempted should proceed as advertised. The-property so selected and appraised as the exemption was further ordered to remain in the custody of
The defendants in said bill gave notice on the 13th of J anuary, 1890, that on the 14th day of that month they would move before the Circuit Judge at his office at Bartow, Fla., to reverse and vacate the order made in said cause by said court commissioner and for an order dismissing the bill upon the following grounds: 1st. That said court commissioner did not have the power to make the order he made, nor any order in the premises. 2nd. That there is no equity in the bill. 3rd. That said property was not exempt under the exemption laws of the State nor any part thereof. 4th. That if said property ever had been exempt that said McMichael had waived his right to said exemption. 5th. That no bond was filed as the law requires to indemnify plaintiffs in execution, nor had the said McMichael paid the costs in the proceedings. 6th. And for other good and sufficient reasons apparent upon said proceedings.
This motion came on to be heard on the 15th of January, 1890, and the Circuit Judge then made an order sustaining said motion, and vacated the said injunction order and dismissed the bill. From this order the complainant McMichael appeals. ■ The court below erred in granting this order, particularly to the extent that it goes of dismissing the complainant’s bill. As to the first ground of the motion upon which the order appealed from was made, we think the court commissioner transcended his power in the matter of ordering an appraisement and scheduling of the property claimed to be exempt. His only power in the premises was to grant an in junctional order restraining the sale of so much of the property levied upon and advertised
The second ground of said motion should properly have been set up in the form of a demurrer to the bill, but as the Circuit Judge must have considered the same in making the order of dismissal of the bill, we also will treat -it, in consideration of the question it presents, as being tantamount to a demurrer to the bill. We can not agree that there is no equity in the complainant’s bill. Ordinarily a court of equity would have no jurisdiction to entertain a bill predicated upon the facts set up in this bill, and praying the relief therein sought; but by Chapter 3246 laws, approved March 7th, 1881, entitled “An Act to Enlarge the Equity Jurisdiction of the Circuit Courts,” the jurisdiction in equity is expressly conferred upon the Circuit Courts and the judges thereof, upon bill filed, to enjoin and restrain the sale of all property, real or personal, that is exempt from forced sale, under the 'Constitution and laws of this State; and, by Section two of that act, said courts are further clothed with jurisdiction in equity, upon bill filed, to order, adjudge and decree the setting aside the homestead, and •exemptions of personal property from forced sale under said Constitution and laws. And, by Section three of the same act, said courts are further given jurisdiction in equity, upon bill filed, to enjoin and. restrain a .sheriff or other officer from setting aside
The bill here makes out a prima facie case entitling the complainant to an exemption of one thousand dollars worth of the property levied upon and advertised to be sold by the defendant sheriff under the executions in favor of the other defendants, from forced sale under ■said processes of law; and the case, as made by the bill, •entitles the complainant to the interposition of a court of equity, not only to restrain the alleged threatened ■sale of property claimed to be exempt, but to pass upon and adjudicate his right to such exemption out •of the particular property claimed to be exempt; and, if he be found to be entitled to have the same exempted to him, then to order and direct the allotment thereof to him. If there was anything that disentitled him to an exemption out of this particular property, the court, in the exercise of its equity jurisdiction, could have so declared; but the facts that would have defeated such exemption right therein, should have been set up in the orderly way, by answer to his bill, and duly sustained by proofs, and not left to surmise
Under the fourth ground of the motion it is urged here that if the complainant ever was entitled to an exemption out of this property he has waived his right thereto, as shown by his bill, because the property had been seized by attachment writs in said suit» some time prior to the rendition of final judgments in such suits, and that the complainant should have interposed his claim to exemption out of said property promptly after the levy of said attachments; that by waiting to assert his right until after said attachments had been merged into final judgments, and until after the court by its order had directed a sale of the property to satisfy such judgments, he had waived his right. In support of this proposition we are cited to the cases of Harlan vs. Haines, 125 Pa. St., 48, and Stanton vs. French, 83 Cal., 194, and State vs. Manley, 15 Ind., 8, cited by Thompson in his work on Homestead Exemptions to sustain the text of Section 826. In the latter case from Indiana it is held that after the court has rendered final judgment for the sale of property attached it is too late for the defendant to claim it as exempt; but it is also held that the defendant' has
In so far as these decisions may be pertinent to the question under discussion, they cannot be applied to the exemption provisions of our Constitution and laws.
Our Constitution does not contemplate that the rigid to the exemption that it gives shall be adjudicated and passed upon as an issue in any proceeding instituted to enforce a debt or to put a debt into the form of a judgment, but shields the property it exempts from forced sale under the process of any court. ’ Its inhibitory hand is not actively lifted until a forced sale under the process of some court is attempted. When such sale is attempted then, no matter when it may be, the party clothed with the right, can call upon the proper courts to apply the shield that the Constitution guarantees to him. That he may waive the right of action that he might have against an officer to damages for a wrongful sale of exempt property, by standing idly by, without protest, until after the sale was made, we are not prepared, nor are we called upon now to decide; but we are satisfied that there can be no waiver of the constitutional right by a failure to assert or claim it until the forced sale is ordered or attempted that is inhibited by the organic law. In the case of Carter’s Administrators vs. Carter et al., 20 Fla., 558, this court has expressly repudiated the doctrine of the Pennsylvania cases, and has ranged itself on the side of those courts that hold that a party entitled to the benefit of the exemption can not waive it by an express agreement to that effect contained in a promissory note. That such an agreement, in a promissory note is inoperative as against the 'policy of the exemption laws. The decision of the;
If a party entitled to the exemption can not waive it by express agreement in a promissory note, founded on a valuable consideration, because his family have an interest in it, and because it would be against the policy of the law thns to allow him to defeat the protection that is designed for his family, it would seem to follow as a corollary that he could not effect such a waiver by parol declarations or by mere negative silence, or failure to act; or, as Thompson puts it in his work on Homestead Exemptions, Section 823: “A right which I can not part with by express contract, because it is only in part mine, I can not, for the same reason, lose by estoppel in consequence of my own act or failure to act.”
The fifth ground of the motion was that the injunction was improperly granted without any bond of indemnity being required from the complainant to the defendant. The act of February 14th, 1861, Chapter 1098, Section 19, page 158, McClellan’s Digest, expressly provides that in all suits in equity, where summary process by injunction is prayed, and the bill jus
The complainant, in the verification of his bill, complies with the requirements of this provision of the law, therefore, there was no impropriety in the granting of the injunction on the ground of the absence of a bond.
The court below was in error in dissolving the injunction upon the showing made on the motion for that purpose, and was clearly in error in ordering a dismissal of the plaintiff’s bill. The bill made a case on the complainant’s behalf that prima facie entitled him to the relief prayed at the hands of the court, and required an answer in due form to overcome it. The complainant upon the showing made, was entitled to be heard with his proofs, and it was error to dismiss him from the court in a fashion so summary and unceremonious.
The decree appealed from is reversed with directions to reinstate the injunctional feature of the order made by the court commissioner.