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West Florida Grocery Co. v. Teutonia Fire Ins. Co.

Florida Supreme Court

October 26, 1917

WEST FLORIDA GROCERY CO. et al.
v.
TEUTONIA FIRE INS. CO.

Rehearing Denied Jan. 12, 1918.

Error to Circuit Court, Walton County; Cephas L. Wilson, Judge.

Suit by the West Florida Grocery Company against the Teutonia Fire Insurance Company, with bill of interpleader by the Insurance Company against the plaintiff, H. T. Reddick, and others. From a final decree discharging the Company and ordering the distribution of the balance of fund among certain creditors of Reddick, and excluding Reddick and the West Florida Grocery Company, the West Florida Grocery Company and Reddick bring error. Reversed.

Syllabus by the Court

SYLLABUS

The provision in a fire insurance policy relative to the consent of the insurer to the transfer of an interest therein does not apply to an assignment after loss.

When an assignment made after loss contains the words 'subject to the consent of the insurer,' or words of similar import, they will be treated as surplusage; such consent not being necessary to the validity of the assignment.

Before a writ of garnishment can be effective, there must be an 'indebtedness due,' at the time of the service of the writ, or at the time he makes his answer, or at any time between such periods, or which may become due absolutely by the lapse of time only. This excludes an indebtedness that may never become due according to circumstances yet to occur, or which is not determinable by a fixed and certain method of calculation. If there is anything contingent or to be done by a person before the liability of another becomes fixed, there is not such an 'indebtedness due' as contemplated by the statute to which a writ of garnishment can apply.

Until the conditions of a fire insurance policy have been complied with by the insured, or his compliance expressly or impliedly waived by the insurer, and until it has exercised its option to replace or restore the property if the policy contains such a provision, a writ of garnishment against the insurer will not be effective.

The words 'indebtedness due' in the Florida garnishment statute refer to a debt due or to become due absolutely and without depending on any contingency.

The provision in the Constitution of Florida that the homestead 'shall be exempt from forced sale under process of any court' applies not only to formal and technical process, but to any judicial proceedings, in law or in equity, which seek the appropriation of the property to the payment of debts.

Provisions for homestead exemptions, whether constitutional or statutory, should be given liberal construction in favor of the person entitled to them.

COUNSEL

Page 210

[74 Fla. 221]W. W. Flournoy, of De Funiak Springs, for plaintiffs in error.

Daniel Campbell & Son and W. T. Bludworth, all of De Funiak Springs, for ...


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