Fincher Motors, Inc. v. Northwestern Bank & Trust Co.

• Decision Date: 04 August 1964
• Docket Number: No. 63-791,63-791
• Citation: Fincher Motors, Inc. v. Northwestern Bank & Trust Co., 166 So.2d 717 (Fla. App. 1964)
• Court: Florida District Court of Appeals
• Parties: FINCHER MOTORS, INC., a Florida corporation, Appellant, v. NORTHWESTERN BANK & TRUST COMPANY, a Missouri banking corporation, Appellee.

Page 717

166 So.2d 717

FINCHER MOTORS, INC., a Florida corporation, Appellant, v. NORTHWESTERN BANK & TRUST COMPANY, a Missouri banking corporation, Appellee.

No. 63-791.

District Court of Appeal of Florida, Third District.

Aug. 4, 1964.

Rehearing Denied Aug. 24, 1964.

A. E. Quinton, Jr., Miami, for appellant.

Stafford & Carter, Miami, for appellee.

Before BARKDULL, C. J., and HORTON and TILLMAN PEARSON, JJ.

HORTON, Judge.

The appellant seeks the reversal of an adverse summary judgment in replevin awarding the possession of an automobile to the appellee. The appellee was the assignee of a chattel mortgage executed in the state of Missouri. The mortgage contained a repossession clause in the event of default or insecurity. ¹

There is no contention that the instrument designated as a chattel mortgage is by its provision or otherwise a retain title or conditional sales contract but was given solely as security for the payment of the sums set forth in the instrument.

After the execution of the chattel mortgage, the automobile was brought to Florida by the mortgagor and exchanged with appellant for a 1960 Oldsmobile and a cash difference. The mortgagor was in default under the terms of the mortgage at the time of the exchange with appellant. The mortgagor falsely represented the mortgaged automobile to be free and clear of encumbrances. A certificate of title was issued by the Commissioner of Motor Vehicles of Florida certifying that there were no liens or mortgages on the automobile.

On discovering the mortgaged automobile in the possession of the appellant, the appellee filed a complaint in replevin seeking possession of the automobile under the provisions of the mortgage which gave it the right of possession in the event of default. Both parties agree that there is no genuine issue of material fact but the appellant contends that it was error for the court to conclude as a matter of law that appellee was entitled to a summary judgment.

The appellant's contention here in the main rests upon the theory that the appellee's right to the statutory possessory remedy of replevin is governed by Florida law; that a chattel mortgage of the type here under consideration, even though by its terms according the appellee right of possession, would not support an action in replevin. On the other hand, the appellee just as strenuously contends that a right of possession in an instrument valid where made, that is, the state of Missouri, will be recognized in Florida and given effect in accord with the laws of the state where the contract was made. The appellee relies, as did the able trial judge, to some extent upon the decision of this court in the case of Crowley v. Dekle, Fla.App.1960, 118 So.2d 239.

The Crowley case was an original proceeding in prohibition to prevent the civil court of record from proceeding further in a chattel mortgagee's action for replevin. A majority of this court refused to issue the peremptory writ holding in effect that this court would not interfere with the exercise of jurisdiction by the civil court of record. The only question before this court was whether the subject matter over which the civil court of record was about to act was within the statutory jurisdiction conferred upon that court. § 33.02, Fla.Stat., F.S.A.

Since prohibition was denied, the only legal conclusion reached by the Crowley case was that the civil court of record was not, under the allegations of the suggestion for the writ, exercising jurisdiction beyond or in excess of that prescribed by law. Prohibition is usually invoked to prevent an alleged exercise of jurisdiction beyond that prescribed by law and not to correct the commission or threatened commission of mere errors by an inferior court that otherwise has jurisdiction over the type of case. See 25 Fla.Jur., Prohibition, § 6. Although the language of this court in the Crowley case may have been misleading, nevertheless the court decided only one issue of law--jurisdiction. The appellee's reliance on the Crowley case is, in our considered judgment, misplaced.

Our examination of the authorities leads us to the conclusion that the appellant's contention is meritorious and that the summary judgment should be reversed. The Supreme Court of Florida, in Snow v. Nowlin, 125 Fla. 166, 169 So. 598, was faced with a question of fact quite analogous to those present in the case at bar. Whether the chattel mortgage in the Snow case was executed in...