Fullerton v. Clark

• Citation: 194 So. 481,142 Fla. 200
• Parties: FULLERTON v. CLARK.
• Decision Date: 05 March 1940
• Court: United States State Supreme Court of Florida

194 So. 481

142 Fla. 200

FULLERTON v. CLARK.

Florida Supreme Court, Division A.

March 5, 1940

Suit by William J. Fullerton against Byron Clark, Jr., as administrator of the estate of Miller J. Huggins, deceased to foreclose a mortgage. From an order denying complainant's petition for rehearing after entry of an order vacating a deficiency decree, complainant appeals. On appellee's motion to affirm the order appealed from.

Motion granted, and order affirmed. Appeal from Circuit Court, Pinellas County; John I. Viney, judge.

COUNSEL

Blanchard & Hoffman, of St. Petersburg, and W. G. Starry, of Tallahassee, for appellant.

Carey &amp Harrison, of St. Petersburg, for appellee.

OPINION

PER CURIAM.

After the going down of the mandate pursuant to our opinion in re Clark v. Fullerton, 130 Fla. 150, 177 So. 851, the Circuit Court on November 19, 1938, entered its order as follows:

'A motion in writing having been duly presented to the Court requesting the entry of an appropriate order in this cause in compliance with the terms and provisions of the Supreme Court decisions heretofore rendered, on this the 1st day of February A. D. 1938, and it appearing to the Court that due notice of the hearing of said motion has been given to Messrs. Blanchard and Hoffman, attorneys for above named Plaintiff, and attorneys representing said Plaintiff and Byron Clark, Jr., as Executor of the Last Will and Testament and Estate of Miller J. Huggins, deceased, all being before the Court, and argument of said counsel having been made before the Court, and said cause having been duly considered, and the decisions of the Supreme Court dated February 1, 1937, and January 5, 1938, in this cause, and other decisions of the Supreme Court referred to in these two designated decisions also having been considered by the Court, and it further appearing to the Court that a mandate from the Supreme Court of the State of Florida in this cause was duly filed in the office of the Clerk of the Circuit Court of the Sixth Judicial Circuit of the State of Florida, on January 8, 1938, and recorded in Chancery Order Book No. 151, on page 340, in which mandate among other things it is ordered: 'The said decree of the Circuit Court be and the same is hereby reversed and the cause remanded, and further appropriate proceedings consistent with the opinions of this Court filed February 1, 1937, and January 5, 1938, (attached to and made a part of this mandate): It is further ordered by the Court that the Appellant do have and recover of and from the Appellee his costs by him in this behalf expended,' and this Court being advised of its judgment to be entered in the premises, it is, therefore, in accordance with the terms and provisions of said mandate and of the decisions of said Supreme Court, decreed, ordered and adjudged that the deficiency judgment heretofore entered by this Court in the sum of $16,745.35 against Byron Clark Jr., as Executor of the Last Will and Testament and Estate of Miller J. Huggins, deceased, in favor of William J. Fullerton, on the 15th day of December, A. D. 1934, and recorded in Chancery Order Book No. 120 at page 525 and 526 thereof in Chancery Case No. 16172, be and the same is hereby cancelled, vacated and annulled.

'Further ordered and adjudged that the remainder of the order confirming the sale, herein referred to as having been entered on December 15, A. D. 1934, remain as is and unaffected by this order.

'Done and ordered this the 19th of November A. D. 1938.'

This order was, and is, as to the disposition of the motion for a deficiency decree, a final order and decree as it disposed of the only matter then pending in connection with this case.

Petition for rehearing was filed on the 3rd day of December, 1938. Petition for rehearing was denied by order of January 12, 1939.

Notice of appeal was recorded on the 11th day of July, 1939. The notice of appeal attempted to...