Crichlow v. Equitable Life Assur. Soc. of U.S.
| Decision Date | 30 December 1933 |
| Parties | CRICHLOW et ux. v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES. |
| Court | Florida Supreme Court |
Rehearing Denied March 8, 1934.
Suit by the Equitable Life Assurance Society of the United States against W. B. Shelby Crichlow and wife. From a final decree for complainant, defendants appeal.
Affirmed.
See also, 103 Fla. 959, 138 So. 481; 105 Fla. 640, 142 So. 219. Appeal from Circuit Court, Manatee County; W T. Harrison, judge.
W. B Shelby Crichlow, of Bradenton, for appellants.
John B Singeltary, of Bradenton, for appellee.
The case was argued in September, 1933. It was dismissed and then reinstated. It was a proceeding in chancery to enforce a mortgage lien upon a certain lot of land in Upham's addition to Bradenton in Manatee county. The mortgage was executed to secure a promissory note dated October 30, 1926, for the sum of $7,500 payable to the order of W. B. Smith Corporation, a Georgia corporation, and so worded that $375 were payable each year for four years beginning October 30, 1927, and $6,000 on October 30, 1931. The note bore 7 1/2 per centum interest until maturity and 10 per centum interest after maturity.
On October 30, 1926, both note and mortgage were transferred to the Equitable Life Assurance Company, the complainant below. The suit was begun December 11, 1930. The bill alleged that the sum of $375 due October 30, 1930, had not been paid nor had the interest due on that date been paid; that taxes on the property for the years 1927, 1928, and 1929 due to the city of Bradenton had not been paid by the defendants but the complainant had paid the same.
The mortgage contained an acceleration clause under which the mortgagee at its option might declare the entire debt remaining unpaid to be due upon the failure of the mortgagor to pay any part of the principal or interest which accrued and became due under the terms of the instrument or in default of the payment of taxes.
Mrs. Lillian C. Crichlow, wife of W. B. Crichlow, executed both note and mortgage, and the latter was duly acknowledged and recorded. Mary B. Andrew and Ellen B. Andrew were made defendants with Mr. and Mrs. Crichlow.
The Crichlows appeared to the bill in January, 1931. In February a stipulation was entered into under which the Crichlows were allowed further time in which to interpose defenses to the bill and in March, 1931, they interposed their demurrer to the bill which was overruled on May 1, 1931, and the Crichlows allowed until June, 1931, to plead. From that order the Crichlows appealed on the last-named date and on the same day a decree pro confesso was entered by the clerk against the defendants. On the 8th day of June, 1931, an order of service by publication was obtained upon the affidavit of John B. Singeltary, solicitor for complainant, that the place of residence of Mary and Ellen Andrew was unknown. In August, 1931, a disclaimer was entered by the defendants Mary and Ellen Andrew.
The assignment of error made by the Crichlows was that the court erred in overruling the demurrer to the bill. No supersedeas was obtained below and the cause proceeded to the taking of testimony and a final decree which was entered on November 2, 1931. The defendants Crichlow then entered their appeal from the final decree. That appeal was entered on December 2, 1931, and on the same day the court made an order fixing the amount of the supersedeas bond at $300. The bond was executed and approved on the same day. The first appeal was returnable August 24, 1931, the second March 2, 1932.
This court affirmed the order from which the first appeal was taken on December 21, 1931. See Crichlow v. Equitable Life Assur. Soc. of United States, 103 Fla. 959, 138 So. 481.
The point in the second appeal is that the first appeal transferred to the Supreme Court jurisdiction of the cause and therefore the circuit court had no power to proceed with the determination of the cause on the merits having lost jurisdiction of it by the first appeal. That...
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