Opinion
March 2, 1960.
Appeal from the Circuit Court, Dade County.
Peter Strelkow, Miami Beach, for petitioner.
Zokvic, Dougherty Carrier, Miami, for respondents.
Petition for certiorari was granted based on probable jurisdiction and argument was heard directed to the question of jurisdiction and the merits.
The judgment in controversy grew out of a law action seeking a declaratory decree in a mortgage foreclosure suit conducted between the parties. The mortgage was given to secure the promissory note upon which the law action was predicated. The record on appeal to the District Court of Appeal, Third District, did not contain the record in the chancery foreclosure suit. The District Court found that it could not review the judgment of the lower court based on the record of a prior chancery action, the record of which was not included in the record on appeal.
This holding was based on Cohen v. Cohen, Fla. 1954, 70 So.2d 362, supported by Greene v. Hoiriis, Fla.App. 1958, 103 So.2d 226, Fricke v. Gaines Construction Co., Fla. App. 1958, 105 So.2d 374, and Hall v. Davis, Fla.App. 1958, 106 So.2d 599. We find that the judgment of the District Court of Appeal was free from error.
It follows that the writ was improvidently issued and being so, it is hereby quashed.
THOMAS, C.J., and HOBSON, ROBERTS and DREW, JJ., concur.