Colburn v. Highland Realty Co., s. 3383 and 3384

Decision Date17 April 1963
Docket NumberNos. 3383 and 3384,s. 3383 and 3384
Citation153 So.2d 731
PartiesSherwood COLBURN, Insurance Commissioner of the State of Michigan, as Receiver of Michigan Surety Company, Appellant, v. HIGHLAND REALTY CO., Inc., et al., Appellees.
CourtFlorida District Court of Appeals

This appeal brings for review a 'Second Amended Summary Final Decree' entered in a suit brought by the purchaser of real estate against the vendor, Michigan Surety Company, a corporation of the State of Michigan, referred to herein as the Company, to obtain specific performance of an executory written contract of sale. Other persons said to have liens or claims upon the real estate were made party defendants. The decree in question required specific performance of the contract in favor of the purchaser. The appeal has been taken by Sherwood Colburn, Insurance Commissioner of the State of Michigan, as Receiver of the Company.

UPON THE MOTIONS TO DISMISS

Motions to dismiss the appeal have been filed by one of the defendant lienors. The motions are based upon the proposition that the appeal is taken from an interlocutory order entered subsequent to the final decree, was taken more than sixty days from entry of the final decree and does not properly bring the final decree before Likewise, it is contended that the lower court had lost jurisdiction when it entered the 'Second Amended Summary Final Decree', and that, therefore, the appeal brings nothing here for review because the decree from which the appeal has been taken is a nullity. This contention is based upon the rule that after a decree becomes absolute the court is without jurisdiction to enlarge it. See Mabson v. Christ, 1928, 96 Fla. 756, 119 So. 131; Morrison v. Morrison, Fla.App.1960, 122 So.2d 199.

this Court for review. See Hollywood, Inc. v. Clark, 1943, 153 Fla. 501, 15 So.2d 175; Ramagli Realty Co. v. Craver, Fla.1960, 121 So.2d 648; Quackenbush v. Town of Palm Beach, Fla.App., 151 So.2d 348.

The record discloses that a 'Summary Final Decree', granting specific performance to the purchaser, was rendered March 8, 1962. On April 25, 1962, plaintiff moved for the entry of the 'Second Amended Summary Final Decree'. The motion was based upon the proposal that the decree of March 8, 1962, should be made current by including new computations of amounts accruing during the interim.

Accordingly, on May 25, 1962, the Chancellor entered the 'Second Amended Summary Final Decree', from which this appeal was taken June 22, 1962. Thus, it is argued that the decree of March 8, 1962, had become absolute and beyond the power of the lower court to enlarge; that, therefore, the decree of May 25, 1962, was a nullity; that the decree of March 8, 1962, remained the 'final decree' of the court; that there was no appeal from that decree; that the appeal, being from the decree of May 25, 1962, a void decree, was taken more than sixty days from entry of the 'final decree' and brings nothing to this Court for review.

A final decree based upon a decree pro confesso becomes absolute 10 days after entry. Rule 3.10, Florida Rules of Civil Procedure, 31 F.S.A. Decrees in general become absolute after expiration of the time for filing a petition for rehearing, which is 10 days after recording. Rule 3.16, F.R.C.P.; Mabson v. Christ, supra; Morrison v. Morrison, supra.

The argument advanced in support of the motions to dismiss ignores the fact that on March 14, 1962, pursuant to Colburn's application, the Chancellor ordered that the performance and enforcement of the decree of March 8, 1962, by stayed. The purpose of the stay was to give Colburn an opportunity to petition for vacation of a decree pro confesso which had been entered against him. The stay order tolled the running of the time for the decree of March 8, 1962, to become absolute. On March 16, 1962, Colburn filed his petition to vacate the decree pro confesso. It was heard March 26, 1962, and on April 24, 1962, the court entered an order denying the petition. On May 25, 1962, the Chancellor vacated the stay order. This ended the tolling of time for the decree of March 8, 1962, to become absolute.

Thus, it appears that from March 8, 1962, the date upon which the 'Summary Final Decree' was entered, to March 14, 1962, the date upon which the stay order was granted, six days had elapsed. The stay order remained in effect until May 25, 1962. On that date the Chancellor vacated the stay order and, at the same time entered the 'Second Amended Summary Final Decree'. It was filed for record May 28, 1962, three days after the stay order had been vacated. Thus, actually only nine days had elapsed between rendition of the 'Summary Final Decree' and the 'Second Amended Summary Final Decree'. Therefore, the former decree had not become absolute when the latter one was entered, and the lower court had jurisdiction to enter it.

The 'Second Amended Summary Final Decree' provides that the decree of March 8, 1962, 'be and it is hereby amended in its entirety as follows:' Then follows a full, complete and current decree. Thus, there was a merger of the former decree It should be understood that this procedure allows no possibility for a revival of the former decree.

into the new one. The old decree was superseded and replaced. The 'Second Amended Summary Final Decree' is not an interlocutory decree entered subsequent to the final decree. On the contrary, it is the final decree in the case. See De Bowes v. De Bowes, 1942, 149 Fla. 545, 7 So.2d 4; Thomas v. Cilbe, Inc., Fla.App.1958, 104 So.2d 397.

When one disregards the period during which the stay order was in effect, it is seen that the appeal was taken within the allotted time. The appeal opens the record for review. 2 Fla.Jur., Appeals, Sec. 304.

The motions to dismiss are denied.

UPON THE MERITS

Appellant complains that error was committed in the lower court because

(1) the lower court had no jurisdiction over Colburn in his capacity as 'Receiver' of the Company;

(2) the purchaser failed to obtain the consent of the Michigan court in which 'delinquency proceedings' were pending under the Michigan 'Uniform Insurers Liquidation Act', to bring this suit;

(3) the lower court had no jurisdiction to grant relief in favor of certain additional defendants brought into the case during the pendency of the suit; and

(4) the lower court had no jurisdiction over the subject matter because of the 'delinquency proceedings' in the Michigan court.

First, appellant urges that the lower court had no jurisdiction over him 'as Receiver'. This argument ignores the fact that appellant, 'as Receiver' voluntarily appeared in the lower court and applied for, and obtained, a stay of the performance and effect of the decree of March 8, 1962. This gave the court jurisdiction over him. Ortell v. Ortell, 1926, 91 Fla. 50, 107 So. 442.

Secondly, appellant insists that permission to bring this suit should...

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    ...the receiver may have had from suit. Moss v. Ten Associates, 524 So.2d 480, 481 (Fla.Dist.Ct.App.1988); Colburn v. Highland Realty Co., 153 So.2d 731, 735 (Fla.Dist.Ct.App.1963). The Massachusetts Supreme Court has reached a similar The rule, however, in this Commonwealth is that the failur......
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    ...v. Beta Trust Corp., 405 So.2d 306, 308 (Fla. 4th DCA 1981) (citing Sec. 631.171, Fla.Stat. (1979)). But see Colburn v. Highland Realty Co., 153 So.2d 731, 735 (Fla. 2d DCA 1963) (suit for specific performance of contract for sale of Florida realty could properly be maintained against Michi......
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    ...receiver may have had from suit. Moss v. Ten Associates, 524 So. 2d 480, 481 (Fla. Dist. Ct. App. 1988); Colburn v. Highland Realty Co., 153 So. 2d 731, 735 (Fla. Dist. Ct. App. 1963). The Massachusetts Supreme Court has reached a similar conclusion: The rule, however, in this Commonwealth ......
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