Commercial Bank of Ocala v. First Nat. Bank

• Decision Date: 22 November 1920
• Citation: 87 So. 315,80 Fla. 685
• Parties: COMMERCIAL BANK OF OCALA v. FIRST NAT. BANK OF GAINESVILLE.
• Court: Florida Supreme Court

87 So. 315

80 Fla. 685

COMMERCIAL BANK OF OCALA v. FIRST NAT. BANK OF GAINESVILLE.

Florida Supreme Court

November 22, 1920

Rehearing Denied March 15, 1921.

Suit in which the First National Bank of Gainesville filed a cross-bill against the Commercial Bank of Ocala. From a decree on the cross-bill, the Bank of Ocala appeals.

Affirmed.

Syllabus by the Court

SYLLABUS

Points adjudicated not open to consideration on subsequent appeal. All the points adjudicated by an appellate court upon an appeal become the law of the case, and are no longer open for discussion or consideration.

Finding of chancellor on conflicting, but sufficient, evidence not disturbed. Where there is competent testimony to support the finding of a chancellor, the decree will not be reversed on the evidence where, though conflicting, it is sufficient to support such finding.

'Deficiency decree' defined. A deficiency decree in a mortgage foreclosure suit is a decree for the balance of the indebtedness after applying the proceeds of a sale of the mortgaged property to such indebtedness.

When assignee of mortgage asked deficiency judgment against original mortgagor for payments improperly retained, the word 'deficiency' is surplusage. Where, in a suit brought for the foreclosure of a mortgage, there is a cross-bill to foreclose a senior mortgage upon a portion of the same property, which cross-bill contains a prayer for a 'deficiency' decree against a party defendant in said suit, who is a former owner of such senior mortgage and the indebtedness secured thereby, for moneys received by such former owner in part payment of such indebtedness, but not applied thereon, which he has no right to retain, the word 'deficiency,' being inapt, may be disregarded, and a decree entered in accordance with such prayer.

Court will determine all matters properly presented. A court of equity, having taken jurisdiction of the cause, and all the parties in interest being parties thereto, will proceed with a determination of all matters properly presented.

Appeal from Circuit Court, Marion County; W. S Bullock, judge.

COUNSEL

H. M Hampton, of Ocala, for appellant.

Hampton & Hampton, of Gainesville, and Hocker & Martin, of Ocala, for appellee.

OPINION

WEST J.

For a proper disposition of this appeal the issues presented are sufficiently stated in the opinion filed when the case was here on the former appeal. Commercial Bank of Ocala v First National Bank of Gainesville, 75 Fla. 634, 79 So. 446. After that decision the case was remanded to the court below where further proceedings were had. Testimony was taken, and a final decree rendered from which this appeal was taken. The law of the case was settled when the case was here before. Questions arising subsequently are largely of facts which are complicated, about which there is dispute, and upon which there is conflict in the evidence. There is evidence to support the conclusions reached, and under the settled doctrine that a decree will not be reversed on the evidence when the testimony is conflicting, but sufficient to support the findings of the chancellor, these questions are not open for consideration here, and a discussion of them would be of no benefit. Phinney v. Phinney, 77 Fla. 850, 82 So. 357; Millinor v. Thornhill, 63 Fla. 531, 58 So. 34; Sheppard v. Crowley, 61 Fla. 735, 55 So. 841.

In the final decree the court found in substance that the appellant, the Commercial Bank of Ocala, had received certain moneys as payments on the indebtedness represented by the note which was transferred by it to the First National Bank of Gainesville, the cross-complainant and one of the appellees here; that such payments were received prior to the transfer, but did not appear as payments or credits upon the note as transferred and delivered to the Gainesville Bank; that the Gainesville Bank had no knowledge of such payments at the time of the receipt of the note, but accepted and paid for it the amount for which it was originally given, less certain credits appearing on the note, and judgment was awarded by the decree against the Ocala Bank in favor of the Gainesville Bank for the aggregate sum of the amounts so received by the Ocala Bank as payments on the note prior to its transfer.

The only...