Carter v. Lisle

174 So. 22, 127 Fla. 788, 1937 Fla. LEXIS 1535

• Court: Supreme Court of Florida
• Decided: April 26, 1937
• Status: Published

Opinions

Buford, J.

The appeal is from an order dissolving attachment which was issued in aid of foreclosure on personal property.

It is the contention of appellant that a traverse of the affidavit in attachment and motion to dismiss the attach ment cannot prevail in proceedings in attachment in aid of foreclosure.

In the case of Alford, et al., v. Leonard, 88 Fla. 532, 102 Sou. 885, a cursory reading of the opinion would indicate that this was the holding of the court, but in that case the power of the court to dissolve an attachment was not involved. The question, insofar as the attachment was concerned, was whether Section 3429' R. G. S. of Florida, providing for the entering of a judgment against the defendant and the sureties upon a forthcoming bond in attachment cases applies to such a bond given for the release of property attached in aid of foreclosure.

The case of Tilghman v. United States Fidelity Co., 90 Fla. 282, 105 Sou. 823, involved the same proposition. On rehearing in that case it was' said: “This court did not hold that the order of the trial court dissolving and discharging the attachment in the Tilghman-Melton case was erroneous but that its effect would not release the surety upon the forthcoming bond.”

The case of Weston v. Jones, 41 Fla. 188, 25 Sou. 888, was determined in this court prior to the amendment of Section 2104, Revised Statutes 1906, 3405 R. G. S., by Chapter 8477 of 1921. Under the provisions of Chapter 8477, Acts of 19.21, there are four grounds for attachment in aid of foreclosure, as follows:

“1. That said property or part of same will be concealed or disposed of so that it will not be forthcoming to answer a judgment or decree upon foreclosure.

“2. That said property or part of same will be removed beyond the jurisdiction of said court.

“3. That said property or part of same is of a perishable character and is being used and consumed by the mortgagor .or other parties.

“4. That said property or part of same has been disposed of without the consent of the party holding and owning the mortgage, and stating who has said property, if known, and if not known, that affiant does not know who has same.”

In addition thereto, that amendment provided as follows :

“And the plaintiff or plaintiffs or complainant or complainants, as the case may be, shall give bond as in other .cases of attachment. And such writs of attachment shall be subject to motion to dissolve as other writs of attachment.”

The fourth ground for attachment above quoted was not contained in Section 2104 General Statutes, 1906, which became Section 3405 R. G. S. Neither did the Act until the amendment of 1921, supra, contain the provision, “and such writs of attachments shall be subject to motions to dissolve as other writs of attachment.”

It was pointed out by Justice Whitfield in the Tilghman case that since that cause of action was instituted Chapter 8477, Acts of 1921, had been enacted, but this enactment had no hearing upon that case. It does have bearing, however, on this case. The statute controls and under the present law writs of attachment issued in aid of foreclosure of lien on personal property are subject to motion to dissolve as other writs of attachment.

We find no error in the order appealed from. Therefore, it should be affirmed and it is so ordered.

Whitfield, Terrell, Brown and Davis, J. J., concur. Ellis, C. J., dissents.