Miami Bank & Trust Co. v. Rademacher Co.

• Citation: 149 Fla. 24,5 So.2d 63
• Court: Florida Supreme Court
• Decision Date: 12 December 1941
• Parties: MIAMI BANK & TRUST CO. v. RADEMACHER CO.

5 So.2d 63

149 Fla. 24

MIAMI BANK & TRUST CO. v. RADEMACHER CO.

Florida Supreme Court

December 12, 1941

Appeal from Circuit Court, Dade County; W. W. Trammell Judge.

Roscoe C Evans, of Miami, for appellant.

Leo Rosen of Miami, and Louis Schwarzkopf, of Miami Beach, for appellee.

PER CURIAM.

Transcript of record was filed here on August 20th, 1941, and the return day named in notice of appeal was the 28th day of August 1941. On September 9th, 1941, appellee filed here its motion to dismiss appeal because of lack of proper and necessary parties. On September 20th, 1941, we entered order as follows:

'Upon consideration of the motion of counsel for appellees to dismiss the appeal in this cause for want of necessary parties, it is ordered that action on said motion be continued until the final hearing of said cause on its merits.'

The cause is now presented for final disposition.

On August 22, 1940 appellee filed his bill against appellant, City National Bank, City of Miami, B. Wall and others to foreclose a lien evidenced by a tax sale certificate on the particular property involved. Foreclosure was also sought against numerous other defendants on numerous other pieces of property. After the filing of appellant's answer and a master's report, with appellant's exceptions thereto and order overruling same, a final decree was entered on March 5th, 1941, finding for appellee's lien and also finding that defendants City National Bank, City of Miami and B. Wall had liens of equal dignity with that of appellee. Notice of appeal was filed by appellant on July 18th, 1941, by appellant alone, naming appellee only as appellee, after a decree confirming the sale of the property involved (Lots 8 and 9, Block 7, El Dorado Heights) had been entered on April 25th, 1941. Appellee then filed his motion to dismiss appeal in this court on the grounds considred below, and appellee answered same and moved for summons and severance and for an order to allow amendment of appeal. This memorandum is on these motions, without consideration of the merits.

The first ground of appellee's motion to dismiss is that the property involved was sold under the final decree to the Office Realty Company, and that this sale was confirmed, but that this purchaser was not made a party to this appeal, although a necessary party.

This is a good ground. Where appeal is taken after confirmation of master's sale, purchaser is a necessary party. Platt v. City of Punta Gorda, 98 Fla. 1242, 125 So. 381. The appeal was so taken here and the purchaser is not a party.

The second ground is that the defendants below, City National Bank, City of Miami and B. Wall are necessary parties to this appeal but are not parties to it.

This is a good ground. The defendants named were decreed by the court to have liens of equal dignity with that of appellee. An affirmance, reversal or modification of that decree would certainly affect their interests so that they are necessary parties. Gardner v. Northern Inv. Corp. et al., 117 Fla. 291, 157 So. 665, is four square with this case in holding that the City of Orlando in an identical situation was a necessary party. The notice of appeal, under the rule of Gover v. Mann, 114 Fla. 128, 153 So 895, and Rabinowitz v. Houk, 100 Fla. 44, 129 So. 501, was insufficient notice to City National...