Opinion
January 2, 1951.
Appeal from the Circuit Court for Sarasota County, W.T. Harrison, J.
Randolph Calhoun and Clyde H. Wilson, Sarasota, for appellant.
John F. Burket, Jr., Sarasota, for B.D. Pearson and Williams Dart, Sarasota, for T.J. Lanier, appellees.
The sheriff of Sarasota County filed a petition in the circuit court 31 March 1950, under Section 30.30(5), Florida Statutes 1949, and F.S.A., in which he set out that Randolph Calhoun as the assignee of two judgments, one entered against Brotherhood Locomotive Engineers Realty Company 1 August 1929 and the other against B.L.E. Realty Corporation 8 April 1930, had demanded that levy be made on certain property to satisfy the judgments. The petitioner represented that the land was in the possession of the appellee, T.J. Lanier, as grantee in a warranty deed recorded 7 July 1943, and he prayed that the judgment holder and the record title holder be required to show cause why the petitioner "should or should not make levy upon said property * * *." The former answered; the latter moved to dismiss and to quash.
The circuit judge considered the matter on these motions and concluded that the judgments were then, 3 July 1950, barred by the statute of limitations, Section 95.11, Florida Statutes 1949, and F.S.A.; so he dismissed the cause. The earlier judgment had been entered more than twenty years before the petition was ever filed; so there seems to be no occasion to discuss it further. The present controversy therefore involves the effect upon the later judgment of the proceedings instituted by the sheriff, i.e.: Was the statute of limitations tolled by the sheriff's petition?
Under the law, Section 30.30(5), supra, it was optional with the sheriff to seek from the court an adjudication of the rights of the respective claimants, one under a judgment, the other under a deed. The statute of limitations provides that an action upon a judgment can only be commenced within twenty years. We do not recognize the sheriff's suit, itself in the nature of a request for advice from the court about his duty to comply with the demand of the judgment holder to levy upon property possessed and apparently owned by a stranger to the suit in which the judgment was entered, as a suit upon that judgment. Certainly the sheriff could not himself sue upon the judgment, and the holder did not.
We have the view that the life of the judgment was not prolonged by the sheriff's action; so the dismissal was proper. See Young v. McKenzie, Fla., 46 So.2d 184; also "The Period During Which a Judgment Remains a Lien on Realty in Florida" by Dr. James W. Day, II University of Florida Law Review 315.
Affirmed.
ADAMS, C.J., and TERRELL and ROBERTS, JJ., concur.