[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 722 The appeal in this case brings for review a final decree dismissing plaintiff's bill of complaint without prejudice and vacating certain other decrees theretofore entered.
The bill of complaint was one to have canceled as a cloud on complainant's title a certain sheriff's deed issued pursuant to sale under execution levied on the real estate described in the bill of complaint as the property of one D.C. Smith. The appellant here was defendant in the court below and answered the bill. The answer showed, in short, that the Virginia-Carolina Chemical Corporation procured a judgment in the Circuit Court of Duval County, Florida, against D.C. Smith and thereupon execution was issued; that the execution was placed in the hands of the Sheriff of Sumter County, Florida, and returned unsatisfied; that thereafter, to-wit, on September 27th, 1933, Virginia-Carolina Chemical Corporation filed an affidavit in proceedings supplementary to execution in the Circuit Court of Duval County, Florida, in compliance with the provisions of Chapter 7842, Acts of 1919, the same being referred to in the answer as Sections 4542, 4544, 4545, 4547 and 4549 C.G.L. of 1927. That pursuant to the filing of such proceedings a Commissioner was appointed, took the testimony of witnesses, made a report to the Circuit Court of Duval County. Thereupon Virginia-Carolina Chemical Corporation filed motion as follows:
"That this Honorable Court will order the property hereinafter described and situate in Sumter County, Florida, to be applied to the satisfaction of plaintiff's judgment debt *Page 723 herein in accordance with the provisions of Section 4543, Compiled General Laws of Florida, and that the said Court shall order and direct the Sheriff of Lake County, Florida, to seize and take into possession and sell at public auction after due notice the following described property, to-wit:"
Then follows the description of the land in Sumter County, Florida, after which is the following:
"And for grounds of said motion the plaintiff submits that it appears by the evidence herein that the conveyance made by D.C. Smith to his brother, F.D. Smith, was in fact made for the purpose of hindering, delaying and defrauding his creditors and that the same is therefore void."
This notice was addressed to Mr. D.C. Smith, Center Hill, Florida., Mr. F.D. Smith, Center Hill, Florida, and Messrs. McCollum and Howell, Attorneys for D.C. Smith and F.D. Smith, Bushnell, Florida.
Pursuant to that hearing judgment was entered against D.C. Smith and F.S. Smith, in which it was adjudged in part:
"The Court further finds and adjudges the fact to be that said conveyance aforesaid from D.C. Smith joined by his wife, Pearl V. Smith, is void and made with the intention to hinder, delay and defraud the plaintiff, one of the creditors of the said defendant, D.C. Smith, and, therefore, said conveyance recorded in Deed Book 104 at page 134 of the public records of Sumter County, Florida, is void and of no effect against plaintiff herein and is so adjudged to be void."
And the Sheriff of Sumter County, Florida, was ordered to forthwith levy upon and seize the lands involved in Sumter County, Florida, as the property of the defendant, D.C. Smith, and that same be sold and applied toward the satisfaction of the judgment and execution. There are no *Page 724 cross assignments of error. The answer failed to show that F.D. Smith was ever brought by any process or by voluntary appearance into the jurisdiction of the Circuit Court of Duval County and for that reason questions attempted to be raised by the assignments of error here are immaterial. It is elementary that before anyone claiming title to property which is the subject of litigation can be bound by a judgment or decree in such litigation that such party must be brought into the jurisdiction of the court and his rights must be submitted to that jurisdiction. F.D. Smith was in nowise made a party to the proceedings supplementary to execution. His name was not mentioned in the original affidavit filed. His name was not mentioned in the order of the Court appointing A.M. Roland Commissioner to take testimony. The first place where his name appears in those proceedings except as a witness before the Commissioner is in the motion and notice hereinabove referred to setting down for hearing before the Circuit Judge after the report of the Commissioner.
We have had one case in this Court involving the identical point in connection with the application of proceedings supplementary to execution and a like question was presented in the case of Florida Guaranteed Securities v. McAllister, et al., in the U.S. District Court for the Southern District of Florida, in which Judge Ritter said:
"There is no provision in these sections for procedure in reference to determining rights in real estate. The procedure in such respect is different from that in reference to personal property, as the statutes recognize. Instead of prescribing procedure in reference to real estate, the broad power is given the judge in Section 4548 to prescribe what in his discretion may be the proper procedure in reference to real estate. This section says that the court shall carry *Page 725 out `the full intent and purpose of this article to subject any property or property rights of any defendant to the satisfaction of any execution against him.' This must perforce include real estate. All claimants to the real estate must have a day in court. This is self-evident and it is incumbent upon the court, under the power here conferred to provide such procedure as will give all claimants in interest in reference to real estate a hearing.
"I construe the Florida statutes to be a substitute for a creditor's bill in equity. These statutes intended to empower the court to follow through with the enforcement of its judgment, so that there would be no necessity for an independent suit to reach property which legally should be applied to the satisfaction of the judgment.
"`Conflicting rights to property involved in supplementary proceedings should not be settled in an independent action, the suggestion being made that where such conflict arises, interpleaders in the supplementary proceedings should be filed.' 10 R.C.L. 163, p. 1373.
"`A judgment creditor's bill is in essence an equitable execution comparable to proceedings supplementary to execution.' Pierce v. U.S., 255 U.S. 398, 41 S. Ct. 365, 366, 65 L. Ed. 697.
"`When jurisdiction is, by the Constitution or this Code, or by any other statute conferred on a court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction if the course of proceeding be not specifically pointed out in this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.' Bayes v. International Co. (C.C.) 84 F. 518, 525."
The question here considered was presented in Ryan *Page 726 Furniture Exchange, Inc., v. McNair, et al., 120 Fla. 109,162 So.2d 483, in which we said:
"If during the course of proceedings supplementary to execution the rights of third parties claiming adversely both to plaintiff in execution as well as to defendant in execution appear to be involved, no rights of such third parties should be adjudged to be affected, impaired, or finally cut off by any order of court made in such proceedings, supplementary to execution, unless such third parties have been first fully impleaded and brought into the case as actual parties to the proceeding, and, as such, given an opportunity to fully and fairly present their claims asparties entitled to a full and fair hearing after the making up of definite issues to be tried, and not as mere spectators or bystanders in the cause. When so made actual parties to supplementary proceedings, writ of error will then lie on behalf of such third parties to review the resultant judgment, if they should feel themselves aggrieved thereby.
"In proceedings supplemental to execution under the Florida statutes, due process of law must be observed wherever rights of third parties are required to be adjudicated, and, in order to adjudicate the rights of such third parties, they must be made actual parties to the proceedings, either by their own voluntary intervention or by the service of an appropriate rule nisi upon them requiring them to appear and show cause why their asserted claims to disputed assets in their hands, possession or control should not be inquired into and held to be voidable as to the plaintiff in execution who is seeking to reach such disputed assets in order to satisfy his judgment against his judgment debtor, whose assets he claims they in reality are."
While we have heretofore held that the statutory proceedings supplementary to execution provided by Chapter *Page 727 7842, Acts of 1919, may be regarded as a substitute for a creditor's bill in chancery; Reese v. Baker, 98 Fla. 52, 128 So. 3; South Florida Trust Co. v. Miami Coliseum Corporation, et al.,101 Fla. 1351, 133 So. 334; and Geo. E. Sebring Co. v. O'Rourke,101 Fla. 885, 134 So. 556, we have not held that the jurisdiction of the Circuit Court in such cases has become co-extensive with the jurisdiction of the Circuit Court in chancery cases.
However, regardless of the question as to whether or not the Circuit Court of Duval County had jurisdiction to determine the status of the title to lands situated in Sumter County in proceedings supplementary to execution issued on judgment rendered by the Circuit Court of Duval County wherein the judgment creditor claimed in such proceedings that the lands in Sumter County were subject to the levy of execution as the property of the judgment debtor named in the Duval County judgment and who was a resident of Sumter County, which we do not now determine, the record shows that F.D. Smith was not made a party to those proceedings, either by process issued by the Court or by intervening as a defendant and was, therefore, not bound by those proceedings.
The assignment of error is that the court erred in its order dismissing the bill of complaint without prejudice. It is not the dismissal that is complained of, but its having been dismissed without prejudice. If error occurred, it was in dismissing the bill, and certainly under the conditions, it was not error to make the order so that such dismissal would operate without prejudice to the complainant.
The decree should be affirmed and it is so ordered.
Affirmed.
WHITFIELD, C.J., and TERRELL, BROWN and DAVIS, J.J., concur. *Page 728
ON PETITION FOR REHEARING.