Belle Mead Development Corp. v. Reed
| Decision Date | 21 March 1934 |
| Citation | 153 So. 843,114 Fla. 300 |
| Parties | BELLE MEAD DEVELOPMENT CORPORATION v. REED. |
| Court | Florida Supreme Court |
Rehearing Denied April 18, 1934.
Error to Circuit Court, Volusia County; M. G. Rowe, Judge.
Action by Belle Mead Development Corporation against Eugene C. A Reed. To review an adverse judgment, plaintiff brings error.
Affirmed.
COUNSEL Thomas N. Tappy and B. F. Brass, both of Daytona Beach, for plaintiff in error.
Paul W Harvey, of Daytona Beach, for defendant in error.
At the beginning of this opinion we wish to express our appreciation of the work of the attorneys in this case in the matter of the preparation of the transcript of the record. Not only the typing which is almost perfect, and we use the qualifying adjective through perhaps an excess of conservatism in the light of the prevailing belief that no human work is perfect but the arrangement of the transcript is a model of efficient work in such matters.
We cannot say so much for the pleadings. The issue on which the case was finally decided and the one question presented for determination by this court is found in one plea and the allegations of the declaration. The evidence submitted was refreshingly concise and the cause accurately determined by the trial judge.
The facts were that in August, 1928, Eugene C. A. Reed executed three promissory notes, two of them were for $5,000 and one for $5,974.84. They were payable to Robert L. and Lula McElroy one, two, and three years after date respectively.
The payment of the notes was secured by a mortgage on real estate. It was alleged that the notes were 'assigned and delivered before maturity' to Belle Mead Development Corporation, the plaintiff in this case. Pleas eleven and twelve to the first and second count of the declaration and pleas twelve and thirteen to the third count averred that in March, 1930, the Belle Mead Corporation instituted its suit for the foreclosure of the mortgage which secured the payment of the notes and in the bill the complainant prayed for a deficiency decree; that a decree of foreclosure was obtained, the property sold, the proceeds applied to the payment of the debt, and the complainant asked for a deficiency decree which was resisted by the defendant and the chancellor refused to enter a deficiency judgment.
In October, 1930, the corporation began this action at law to recover on the promissory notes. The court at the beginning of the trial struck those pleas which we think was error, but during the trial the evidence disclosed more in detail what the pleas averred as a defense, namely that there was a foreclosure proceeding, the debt adjudicated to be due was $18,507.85, the property brought at sale $12,000, leaving a balance of $6,507.85.
The defendant offered in evidence the bill of complaint in the foreclosure proceeding for the purpose of showing the prayer for a deficiency decree. It was as follows: 'If the proceeds of such sale or sales, after paying all of the said costs, charges and expenses as aforesaid, should be insufficient to pay the sum or sums due to your orator by the decree of this Court, that your orator have a decree and judgment of this Court against the said defendant, Eugene C. A. Reed, for such deficiency.'
The court announced that it would take judicial notice of the record in the cause tried before him when the records were presented to him and called to his attention.
There was no error in that ruling and no exception was taken to it. The statement admits of some qualifications and is not correct as a general proposition. 15 R. C. L., p. 1113.
There was a verdict for the defendant and judgment in his behalf to which the plaintiff took a writ of error.
The plaintiff in error by its counsel states in the brief that the only question involved is the following:
'Question: Does a prayer for a deficiency decree in a bill of complaint in a mortgage foreclosure suit preclude a suit at law for a balance due on the notes, after the conclusion of such foreclosure suit, wherein no order was made in reference to such deficiency, and wherein the complainant made no application to the equity court to adjudicate or grant a deficiency, but refrained from invoking the jurisdiction of equity in this regard?'
A part of the question as stated...
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Coffrin v. Sayles
... ... 259, 123 So. 742; Atlantic Shores Corp. v ... Zetterlund, 103 Fla. 761, 138 So. 50; Taylor v ... foreclosure sale ... In ... Belle Mead Dev. Corp. v. Reed, 114 Fla. 300, 153 So ... 843, ... ...
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...523, 52 S.Ct. 494, 76 L.Ed. 1267 (U.S.1932); Provost v. Swinson, 109 Fla. 42, 146 So. 641 (Fla.1933); Belle Mead Development Corporation v. Reed, 114 Fla. 300, 153 So. 843 (Fla.1934); Coffrin v. Sayles, 128 Fla. 622, 175 So. 236 For example, in Scheneman v. Barnett, 53 So.2d 641 (Fla.1951),......
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