Summary
In McLarty v. Foremost Dairies, 57 So.2d 434, 434 (Fla.1952), the supreme court considered a petition for writ of certiorari to review a judgment of the Duval County Circuit Court which affirmed the judgment of the Civil Court of Record for Duval County.
Summary of this case from Higgins v. Dyck-O'Neal, Inc.Opinion
February 19, 1952. Rehearing Denied March 27, 1952.
Appeal from the Circuit Court for Duval County, Claude Ogilvie, J.
W.J. Gardiner, Daytona, Beach, for petitioner.
Ragland, Kurz Layton, Jacksonville, for respondent.
This is a petition for the Common Law Writ of Certiorari to review the judgment of the Circuit Court of Duval County affirming the judgment of the Civil Court of Record for Duval County.
The record discloses there is no dispute as to the facts. Respondent here was the owner and holder of a note of the petitioner secured by chattel mortgage. Suit was filed in Volusia County to foreclose this mortgage. In the suit to foreclose the chattel mortgage a deficiency decree was prayed for. No further action was taken with regard to this prayer for deficiency. The personal property mortgaged was sold pursuant to final decree entered in the foreclosure proceedings and after crediting the proceeds of the sale to the note, there remained due and owing to the plaintiff the sum of $1,548.41. The foreclosure sale and the report of disbursements was confirmed by the Circuit Court of Volusia County. At no time during the entire proceedings was any request made for a deficiency nor was the matter called to the attention of the Court in any way. The only time or place where the matter of deficiency appeared in the proceedings in Volusia County was the prayer for deficiency contained in the bill of complaint.
In due course the respondent here filed suit in the Civil Court of Record in and for Duval County for the balance due upon said note after crediting the proceeds of the foreclosure sale in Volusia County. The petitioner here, defendant in the Civil Court of Record, pleaded as a defense the foreclosure suit in Volusia County and the prayer for deficiency contained in the bill of complaint. It is the contention of the petitioner that the respondent having prayed for a deficiency without obtaining one, could not sue upon the note to recover the balance due upon the mortgage note.
This case is controlled by the opinions of this Court in Reid v. Miami Studio Properties, Inc., 139 Fla. 246, 190 So. 505, and Luke v. Phillips, 148 Fla. 160, 3 So.2d 799.
The petitioner here complains that there is still confusion on this question because of some supposed conflict between the cases of Crawford v. Woodward, 140 Fla. 38, 191 So. 311, and Belle Mead Development Corp. v. Reed, 114 Fla. 300, 153 So. 843, and the case of Reid v. Miami Studio Properties, Inc., supra, and also because the opinion in Luke v. Phillips, supra, does not show whether or not there was a prayer for deficiency in the bill to foreclose the mortgage.
Any conflict between the cases of Reid v. Miami Studio Properties, Inc., supra, and other cases mentioned, were settled in the opinion by Justice Terrell in the case of Luke v. Phillips, supra. In that opinion it was distinctly pointed out that the facts in Reid v. Miami Studio Properties, Inc., supra, were different from those in the other cases mentioned and where not different, the other cases were inferentially or otherwise over-ruled by the Reid v. Miami Studio Properties, Inc., supra, case.
Although the opinion in the case of Luke v. Phillips, supra, does not state that a deficiency decree was prayed for, we have examined the record in that case and find that in the bill to foreclose the mortgage a deficiency decree was specifically prayed for. The sale of the mortgage property and disbursements were approved and confirmed by the Chancellor but no deficiency decree was entered or requested. In other words, the facts in the case of Luke v. Phillips supra, are identical with the facts in this case. In the case of Reid v. Miami Studio Properties, Inc., supra [ 139 Fla. 246, 190 So. 506], we held:
"It will be noted that the question vel non of granting a deficiency decree is one purely in the discretion of the Chancellor. If the Chancellor had ruled on that question in the foreclosure suit, his ruling might have concluded the question we are confronted with here. If he had ruled that no deficiency could have been granted, certainly this would have foreclosed any question as to the election of a forum. * * *
"In fine, we understand Section 5751, Compiled General Laws of 1927 [F.S.A. § 702.06], to mean that if a deficiency decree is asked for in a foreclosure and granted, that settles the question of what forum may be sought for relief but if not asked for or if asked for and overlooked or not considered, the right of the claimant is not affected. He may sue at law and recover such portion as he may prove himself entitled to."
Our opinion in that case was re-affirmed in the case of Luke v. Phillips. If the opinion in Reid v. Miami Studio Properties, Inc., supra, as affirmed in Luke v. Phillips, supra, is in conflict with any other holdings with reference to the subject matter, such holdings, or opinions, are over-ruled to the extent of such conflict.
No departure from the essential requirements of the law have been made to appear.
Petition for Certiorari be and the same is hereby denied.
SEBRING, C.J., and CHAPMAN and ROBERTS, JJ., concur.