146 So. 2d 400 | Fla. Dist. Ct. App. | 1962
The appellees, the owners of certain real estate in Dade County, sued in equity for reduction of an annual ad valorem tax assessment. Their suit, as required under § 192.21 Fla.Stat., F.S.A., was commenced “within sixty days from the time the assessment shall become final.” But they failed to make the state comptroller a party defendant, although by express statutory provision
The defendants, the county manager, tax assessor, tax collector and county commissioners, moved to dismiss the complaint as not stating a cause of action and for failure to join the state comptroller. The chancellor denied the motion to dismiss and allowed the plaintiffs to amend to join the comptroller. That interlocutory order is the subject of appeal No. 62-444. An amended complaint was filed joining the comptroller as a defendant after the 60-day period for commencement of the suit. The defendants then moved to dismiss the amended complaint for failure to join the comptroller within the time for filing suit. The order denying the second motion to dismiss is the subject of appeal No. 62-443. The two appeals were consolidated for briefing and argument.
The determinative question on the appeal from the first order is whether it was es
Appellants contend the statute which provides that such a suit can not be maintained unless the comptroller is made a party, means that suit can not be instituted without him. Appellees argue that “maintained,” as used in the statute
We conclude, therefore, that the chancellor committed no error in denying the first motion to dismiss, and we affirm the order appealed from in case No. 62 444.
In seeking reversal of the order denying the second motion to dismiss, the appellants argue that since the presence of the comptroller as a party was necessary to the maintenance of the suit, he could not be joined after the expiration of the 60-day limitation period. The argument lacks merit. The allegations of the complaint were not directed against the comptroller, nor was he responsible for defense of the cause on the merits. By statute, however, the comptroller was an indispensable party without whose joinder the suit could not proceed to a conclusion.
Affirmed.
. Section 196.14 Fla.Stat., F.S.A., reads: “No suit or proceeding shall be maintained in any court of this state for the purpose of canceling or contesting the validity of any tax assessment or tax certificate unless the comptroller of the state be made a party to such proceedings. * * * t*
. See note 1.
. In 54 C.J.S. Maintain p. 902, it is said: “Applied to actions. It has been held that the word ‘maintain,’ when applied to actions, has three meanings. One meaning of the term is to commence; to begin; to bring; to institute. However, it has been said with reference to actions that ‘maintain’ means something more than to commence, and carries a different meaning from ‘begin’ or ‘institute.’ Thus the second meaning of the word is to continue; to carry on; to support, ns contradistinguished from to institute, the action that has already been brought; to persevere in or with; to commence and prosecute to a conclusion. In accordance with this view, it has frequently been said that to maintain a suit is to uphold, continue on foot, and keep from collapse a suit already begun. 'Where the word is employed to signify either the first or second meaning, it may comprehend the institution as well as the support of the action, including the commencement of or right to institute an action, and in this sense it implies that an action must be begun before it can be maintained. The third meaning of the term is to commence and prosecute to a conclusion that which has already been begun. In addition, the term is often used to signify an action yet to be instituted. A prohibition against the maintaining of an action or suit may or may not indicate a prohibition against beginning or commencing it.”
. Sec. 608.35 Fla.Stat., F.S.A.
. Sec. 865.09 Fla.Stat., F.S.A.
. See note 1.