131 Fla. 752 | Fla. | 1938
The parties to this cause will be referred to in this opinion as they appeared in the court below as plaintiff and defendants. On December 11, 1930, plaintiff filed in the Circuit Court of Manatee County its bill of complaint seeking a foreclosure of a mortgage. The bill of complaint was in the usual form. Defendants filed a demurrer to the bill of complaint and upon hearing the lower court entered an order overruling the same. From the order overruling the demurrer an appeal was taken to this Court when the ruling of the lower court was affirmed. The decision was reported in
On November 2, 1931, a final decree in behalf of plaintiff was made and entered by the lower court and the defendants *754
appealed therefrom to this Court when the appeal was dismissed. It was reported in
On July 18, 1936, the lower court entered an order confirming the sale had under the final decree and in the same order determined the amount of the deficiency as shown by the Master's report. The lower court retained jurisdiction of the cause for a period of thirty days after July 18, 1936, for the purpose of hearing and determination of the right of the plaintiff to a deficiency decree. From this order an appeal was taken to this Court and 18 assignments of error argued for the reversal of the confirmation order. The brief of defendants does not discuss each assignment as made, but presents all assignments of error under two questions.
By the first question it is contended that the court below was without authority to make and enter the order appealed from without notice in face of an order dated August 4, 1934, to the effect "that the defendant shall be notified by counsel for complainant of all future proceedings to be taken before the court with reference to said cause and with full right to litigate the same." It has not been made to appear by the record by affidavits or any other satisfactory evidence that full notice was not given and made in conformity with the above order. It seems that the assignment should have some support in the record in the form of evidence to sustain this contention. The court retained jurisdiction of the cause for a period of thirty days from and after July 18, 1936, and during this period, according to the record, the defendants nor their solicitors of record appeared before the court and requested a rehearing. It *755 occurs that the court made provisions for any emergency by retaining jurisdiction thereof and no doubt errors of fact or law within this period would have been considered had this item been brought to its attention. While the order recites the purpose of hearings during the thirty days period next after July 18, 1936, we cannot assume that the learned Chancellor would have refused a hearing to the defendants on the identical points assigned as error and argued in the brief under question one had the same been requested. While the order makes findings as to the amount of a deficiency and a petition for a deficiency was filed August 7, 1936, there is nothing in the record in the form of a decree of judgment against the defendants and we cannot assume that the Chancellor below will proceed to enter a deficiency decree without notice to the defendants or their solicitors of record.
It is unnecessary to consider the points raised by question two of defendants' brief.
In the case of Florida Fertilizer Mfg. Co. v. Hodge,
This Court considered the question raised here in the case of Mitchell v. Mason,
"Inadequacy of price in connection with other circumstances having a tendency to cause such inadequacy resulting *756 in injury is considered sufficient grounds to set aside the same especially if the circumstances result from the mistake of one whose duty it is under the decree to make sale of property, yet the Chancellor has a large discretion which will only be interfered with by the appellate court in a clear case of injustice."
Likewise in the case of Ruff v. Guaranty Title Trust Co.,
"This Court, in Mitchell v. Mason,
"This Court has held that the general rule is that mere inadequacy of price is not sufficient to set aside a judicial sale, but `where such inadequacy is connected with or shown to result from any mistake, accident, surprise, misconduct, fraud or irregularity, the sale will generally be set aside' Lawyers' Co-op. Pub. Co. v. Bennett,
From a proper consideration of the entire record no reversible error has been made to appear and the order appealed from is hereby affirmed.
WHITFIELD, P.J., and BROWN, J., concur.
ELLIS, C.J., and TERRELL and BUFORD, J.J., concur in the opinion and judgment.