Eristavi-Tchitcherine v. Miami Beach Federal Sav. & Loan Ass'n

• Decision Date: 18 February 1944
• Court: Florida Supreme Court
• Parties: ERISTAVI-TCHITCHERINE et al. v. MIAMI BEACH FEDERAL SAVINGS & LOAN ASS'N et al.

16 So.2d 730

154 Fla. 100

ERISTAVI-TCHITCHERINE et al. v. MIAMI BEACH FEDERAL SAVINGS & LOAN ASS'N et al.

Florida Supreme Court

February 18, 1944

Appeal from Circuit Court, Dade County; Paul D. Barns, judge.

Bart A. Riley, A C. Dressler, and Riley & Dressler, all of Miami, and J Lewis Hall, of Tallahassee, for appellants.

Patton & Kanner and McKay, Dixon & DeJarnette, all of Miami, and Meyer Davis & Weiss, of Miami Beach, for appellees.

BROWN, Justice.

This is a mortgage foreclosure case. It involved the foreclosure of a mortgage on 35 lots on Biscayne Island, one of the islands along the Venetian Causeway and within the City limits of Miami. Thirty-four of the lots were vacant lots and one was improved with a handsome residential structure. The amount of the mortgage was $70,000. Final decree of foreclosure was rendered and entered on February 12, 1943. The final decree ordered the special master to sell the property at the South Front Door of the County Court House at Miami, within the legal hours of sale, on Monday, April 5 1943, the property to be sold to the highest and best bidder for cash. The decree also ordered the special master to give notice of such sale by publishing such notice 'in the Miami Review and Daily Record, a newspaper of general circulation published in Dade County, Florida, for at least one insertion to be made prior to the date of sale.'

There was no petition filed for a rehearing within the twenty-day period, nor at any other time for that matter. Nor was any appeal taken from such final decree until May 25, 1943, at which time appeals were also taken from several orders made by the court subsequent to the final decree. Thus as to the final decree, the appeal came too late, the 60-day period having expired. See Section 67.03, F.S.1941, F.S.A. We are without jurisdiction to review it.

Notice of sale was published by the master on March 29, 1943, one week prior to the date of sale, as designated in the final decree.

An April 2, 1943, three days before the sale date, appellants filed a petition praying the court to postpone the sale and order the special master to re-advertise the property for public sale on the rule day in May, 1943, and to give notice of the time and place of sale by publication once each week for four consecutive weeks. It was alleged in the petition that while there is no statute in this state fixing the time of notice of sale in mortgage foreclosure cases, the time as fixed in the final decree did not provide for a reasonable notice of such sale and was not in accordance with the practice and custom of the Circuit Courts of Florida, or of the Circuit Court for the 11th Judicial Circuit. That at the time the decree was signed, petitioners and their attorney of record believed that the mortgaged property would be refinanced on March 17, 1943, but that on that date, and up to the present time, defendants have not been able to refinance the property. It also alleged that the mortgaged property was worth upward of $200,000; that the notice as published was not a reasonable public notice, was prejudicial to the interests of the petitioners, and prayed that the court order the special master to re-advertise the property for sale on the Rule Day in May, 1943, and to give notice of the time and place by publication once each week for four consecutive weeks. The petition was sworn to by two of the appellants.

This petition for postponement came on to be heard before the Circuit Judge at 9:30 A. M. on April 5, 1943, the morning of the day on which the sale was to be had, and the same was denied, a formal order to that effect being entered on the following day.

One of the appellees filed a motion on the morning of April 5, 1943, stating in effect that if the property were sold in separate parcels it would probably bring a greater sum than if sold as one unit, and prayed that the master be directed to sell the same in separate parcels, which motion was granted on the same day and before the sale was had on that day.

On April 9, 1943, the special master filed his report of sale, giving the numbers of the lots and the names of the highest bidders for each lot, the total sales amounting to $82,575.

On April 14, 1943, the defendants, appellants here, filed exceptions to the master's report of sale and objections to its confirmation by the court which embraced the same grounds, among others, contained in the petition hereinabove referred to, and alleged that the value of the property at the time of the sale was in excess of $200,000, and that if a notice of sale had been given once a week for four weeks the public would have been better advised of the sale of such valuable property. It is also alleged that the attorney for defendants who had handled the cause up until the final decree had, through ignorance or mistake, permitted the property to be sold under the terms of the final decree, and that defendants had not authorized said attorney to agree to a decree containing a direction for only one insertion of an advertisement of notice of sale and that in so doing he had aided in depriving the defendants of their legal rights to due process. It is also alleged that the price received for the property was wholly inadequate and that upon the taking of testimony by the court as to the value of the property the court should be convinced that said sale price was wholly inadequate, so as to shock the conscience of the court. The petition also alleged that petitioners had employed additional counsel on March 31, 1943, to represent their interest and prayed the court to order the special master not to hold the sale of the mortgaged property on Monday, April 5, 1943, but that he re-advertise the property for public sale on the Rule Day in May, 1943, and give notice thereof by publication once each week for four consecutive weeks; also that the property be sold in parcels of one lot each and in the event said sale by parcels should not be sufficient to pay the amount of the final decree and costs, the master be ordered to offer the mortgaged property in its entirety, and accept the highest aggregate sum bid under either of said two sales. This motion was sworn to by the President of the Biscayne Island Corporation, which corporation was one of the defendants in the court below. On the same date that the above motion was filed a motion was also filed asking that the court appoint a master to take testimony showing the basis of that part of his report, reading as follows:

'That for some time prior to the day of said sale one or more persons interested in giving the matter of said sale the greatest possible publicity caused various notices and advertisements, regarding said Special Master's Sale, to be published on several occasions in the Miami Herald; and judging from the unusual number of persons who attended and bid at said sale, said last mentioned notices and advertisement accomplished the desired purpose.'

Certain interrogatories were also propounded to the master as to who placed the advertisements, referred to, the date when published, and whether or not the master had them published, etc.; also that the defendant be permitted to examine the buyers of the property at the master's sale and to call realtors to testify as to the value of the property sold.

On April 17, 1943, the court entered an order confirming the special master's report, excepting however from said report lots 37 and 38, and holding that the special master had conducted the sale in accordance with the final decree, and except as to lots 37 and 38, authorizing him to execute and deliver a special master's deed to each of the respective purchasers at the sale, giving a list of the purchasers and the amounts of their bids, and authorized and directed the master to make disbursements and payments of the proceeds from the master's sale under the terms of the final decree and to make a report thereof to the court. The master's final report showed compliance with this order, and attached clippings showing the various advertisements referred to in his first report, one of which was a 'display ad,' which carried a picture of the handsome residence located on one of the lots.

On April 19, 1943, the court entered an order denying the exceptions to the special master's report of sale, and the motion to take testimony, hereinabove referred to. This order of April 19, 1943, denied the exceptions to the master's report of sale and the motion to take testimony nunc pro tunc as of April 17, 1943, being the date on which these matters were heard and orally denied by the court.

On May 25, 1943, notice of appeal was filed to each of the orders of the Circuit Court hereinabove referred to, and also to the final decree of February 12, 1943.

It thus appears that the foreclosure sale was conducted strictly in accordance with the final decree, which latter was not attacked by petition for rehearing or by timely appeal. The final decree is certainly not void on its face, and not being reviewable here for mere error, if any, except on appeal taken within the time allowed by law, we must regard it as final and absolute. Furthermore, the various successful bidders for cash, to whom master's deeds were executed in accordance with the court's final decree and subsequent order of confirmation, have not been made parties to this appeal, nor were they parties to this litigation in the court below. See Garvin v. Watkins, 29 Fla. 151, 10 So. 818; Platt v. City of Punta Gorda, 98 Fla. 1242, 125 So. 381; Miami Bank & Trust Co. v. Rademacher Co., 149 Fla. 24, 5 So.2d 63, and cases cited.

The assignments of error and the contentions of counsel for appellants in their brief are based upon the insufficiency of the notice prescribed in the final...