Cruden v. State Bank of Apopka, 2455

• Decision Date: 29 November 1961
• Docket Number: No. 2455,2455
• Citation: 136 So.2d 357
• Parties: D. G. CRUDEN, Dixie Concrete, Inc., and Smyth Lumber Company, Appellants, v. STATE BANK OF APOPKA, Appellee.
• Court: Florida District Court of Appeals

Page 357

136 So.2d 357

D. G. CRUDEN, Dixie Concrete, Inc., and Smyth Lumber Company, Appellants, v. STATE BANK OF APOPKA, Appellee.

No. 2455.

District Court of Appeal of Florida, Second District.

Nov. 29, 1961.

Adhered to as Corrected on Denial of Rehearing Jan. 24, 1962.

Joe A. Cowart, Jr., Cocoa, for appellants.

William S. Blalock; Maguire, Voorhis & Wells, Orlando, for appellee.

SMITH, CULVER, Associate Judge.

This is an interlocutory appeal taken from an order entered by the Court below, on January 23, 1961. Appellants here were three of the Defendants in the trial Court, and Appellee was the Plaintiff. The parties will be referred to in that manner.

The pertinent portion of the order appealed from, which is an order granting a rehearing, reads as follows:

'ORDERED, ADJUDGED and DECREED that plaintiff's Petition for Rehearing be and the same is hereby granted, and it is further.

'ORDERED, ADJUDGED and DECREED that such rehearing shall be held before this Court the 28th day of February, 1961, at Rockledge, Florida, after due notice of such hearing which shall be given by counsel for plaintiff herein.

'DONE and ORDERED, in Chambers at Rockledge, Florida, this 23rd day of January, A. D. 1961.

'/s/ Wm. G. Akridge

'Wm. G. Akridge, Circuit Judge'

The suit was brought by Plaintiff to foreclose a mortgage, naming several defendants, including Appellants. During its progress, Plaintiff filed a Motion to Dismiss defendants defenses, a Motion to Strike Portions of their Answers, and a Motion for Summary Decree. The Defendants-Appellants also filed a Motion for Summary Decree. In due course, these motions were heard and the Chancellor thereafter, on November 8, 1960, entered an order. After reciting certain findings of law and fact, the order states:

'* * * it is, therefore,

'ORDERED, ADJUDGED AND DECREED as follows: (1) The plaintiff's motions to strike and to dismiss the defense and answers of the defendants D. G. Cruden, Dixie Concrete, Inc., Smyth Lumber Company, Gee & Jenson Land Surveyors, Inc., and Haskel C. Haas, be, and they are hereby, denied; (2) The motion of the defendants D. G. Cruden, Dixie Concrete, Inc., and Smyth Lumber Company, for a summary decree be, and the same is hereby, granted and the Court hereby determines as a matter of law that the plaintiff's mortgage failed to give constructive notice to said defendants and the judgment liens of said defendants are entitled to priority over said mortgage. (3) The motion of the plaintiff for a summary decree against the defendants Haskel C. Haas, D. G. Cruden, Dixie Concrete, Inc., and Smyth Lumber Company, be, and the same is hereby, denied. (4) The Court does not at this time rule on any other matters involved in this cause.

'DONE AND ORDERED at Rockledge, Brevard County, Florida, this 8th day of November, 1960.

'/s/ Wm. G. Akridge

'Judge of the Circuit Court of Brevard County, Florida.'

The defendants present, as their first point, the question of whether or not a rehearing may be granted after the entry of summary final decree, in an equity case. Plaintiff contends, in reply thereto, that defendants have misconstrued the order of November 8, 1960, and that, in fact, no summary final decree was entered in the cause. It is incumbent on us to determine whether or not the order of November 8, 1960, was a summary final decree, as to the defendants involved in this appeal. In the case of Blount et al., v. Hansen, Tax Assessor for Broward County, Florida et al., (Fla.App.1959) 116 So.2d 250, 251, this Court said:

'In general contemplation a final decree as it concerns mode of review decides and disposes of the cause on its merits, leaving no questions open for judicial determination except the execution or enforcement of the decree if necessary. Thus the distinguishing feature between an 'Interlocutory Decree' and a 'Final Decree' may be said that an interlocutory decree is one that is rendered in the middle of the cause and which does not finally determine or complete the cause; while a final decree is one that determines the rights of the parties and disposes of the...