Edelstein v. Peninsular Lumber Supply Co.
| Decision Date | 30 April 1971 |
| Docket Number | No. 70-140,70-140 |
| Parties | Ione A. EDELSTEIN, now Ione A. Riley, Appellant, v. PENINSULAR LUMBER SUPPLY CO., Appellee. |
| Court | Florida District Court of Appeals |
Charles L. Cetti and Joseph L. Thury, Tampa, for appellant.
Robert H. Carlton, Tampa, for appellee.
This is an interlocutory appeal from an order entered by the Hillsborough County Circuit Court denying a motion to set aside a previous final judgment of foreclosure entered in a suit originally filed by Peninsular Lumber Supply Co., as plaintiff, against Ione A. Edelstein and her former husband Isadore C. Edelstein.
On September 25, 1967, Peninsular, being then the owner and holder of a valid mortgage on property of the Edelsteins and which mortgage was in default, filed suit against the Edelsteins to foreclose the mortgage. In due course, on January 12, 1968, the Court entered final decree of foreclosure, and on February 13, 1968 the Court clerk issued certificate of title to Peninsular. on March 3, 1969, Mrs. Edelstein filed motion to set aside the final judgment of foreclosure. Peninsular and Edelstein filed motions to strike her motion. The Court thereupon took adversary testimony concerning the matters and issues raised by her motion to set aside the foreclosure judgment, after which the Court entered comprehensive order denying her said motion, including therein a full review of the facts and issues between the parties. Judge Spoto's order, which was entered on December 12, 1969, is fair and explicit, and we include herein the pertinent parts thereof, which we approve, as follows:
'This cause came on to be heard on the motion to set aside the final judgment of foreclosure entered in this cause on January 12, 1968, which motion was filed on March 3, 1969 by the defendant, Ione A. Riley, formerly Ione A. Edelstein. The defendant, Isadore C. Edelstein, and the plaintiff, Peninsular Lumber Supply Company, both filed motions to strike the defendant's, Ione A. Riley, formerly Ione A. Edelstein, motion to set aside the final judgment of foreclosure. Testimony was taken thereon and after considering the briefs submitted by all counsel and being duly advised in the premises the Court finds the facts to be as follows. The defendants, Ione A. Riley, formerly Ione A. Edelstein, and Isadore C. Edelstein, were involved in a divorce suit. The plaintiff, Peninsular Lumber Supply Company, held a valid mortgage on the property involved herein. On September 25, 1967, the plaintiff filed a mortgage foreclosure complaint against both defendants, Isadore E. Edelstein and Ione A. Edelstein. On October 2, 1967, the parties entered into a stipulation in the divorce suit settling various property rights and in compliance with the provisions of said stipulation, the defendant, Isadore C. Edelstein, on the same day, executed a quit claim deed on the property herein involved to the defendant, Ione A. Edelstein. Both defendants knew that the plaintiff held a mortgage on said property. On October 3, 1967 the defendant, Isadore C. Edelstein, was served with a summons in the forelosure suit at his place of business and at the same time and place the summons was served on his wife, the defendant, Ione A. Edelstein, by service on her husband, Isadore C. Edelstein. The Sheriff's return was regular on its face. The final judgment of divorce between the defendants, Isador C. Edelstein and Ione A. Edelstein, was entered on October 18, 1967.
The defendant, Isadore C. Edelstein, did not give to the defendant, Ione Edelstein, her copy of the return. Meanwhile, about the time of the service of the summons, or shortly thereafter, the defendant, Ione A. Edelstein, had been to see the plaintiff's attorney in regards to paying off the mortgage indebtedness on the property. The defendant, Ione A. Edelstein, was informed and knew about the foreclosure suit; in fact, it was held up for over two months to give her an opportunity to pay the same. This she never did and on January 12, 1968 this Court entered a final judgment of foreclosure and on February 13, 1968 the Clerk of this Court issued a certificate of title to the plaintiff. Then, on February 14, 1968 the plaintiff sold the property to Anchor Builders, Inc., a corporation apparently owned by the defendant, Isadore C. Edelstein. The plaintiff made an $8200 construction loan to the defendant, Anchor Builders, Inc. Meanwhile, in February, 1968, the defendant, Ione A. Edelstein, knowing that the property had been sold to Anchor Builders, Inc., went by the property involved and saw construction going on. She knew that the property had been foreclosed and sold, she watched the construction going on, and yet she took no action in the matter until May, 1969, after the house had been completed. She filed a motion in the divorce proceedings seeking relief from her former husband, the defendant, Isadore C. Edelstein, on the ground that she...
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