Holtsberg v. Mccarty

CourtUnited States State Supreme Court of Florida
Writing for the CourtPER CURIAM.
Citation117 Fla. 554,158 So. 123
Decision Date06 December 1934
PartiesHOLTSBERG et al. v. McCARTY.

158 So. 123

117 Fla. 554

HOLTSBERG et al.
v.
McCARTY.

Florida Supreme Court

December 6, 1934


Rehearing Denied Dec. 27, 1934.

Suit by Brian K. McCarty, as executor of the estate of Lizzie B. McCarty, deceased, against Sarah Holtsberg, a widow, and others. Decree for complainant, and defendants appeal. On motion to dismiss the appeal as frivolous.

Motion denied, and decree affirmed. [117 Fla. 555] Appeal from Circuit Court, St. Lucie County; Elwyn Thomas, judge.

COUNSEL

Nottingham & Denison, of Fort Pierce, for appellants.

Alto Adams and Dewey Crawford, both of Fort Pierce, for appellee.

OPINION

PER CURIAM.

Upon motion filed by appellee to dismiss the appeal in this case as frivolous, this court entered an order that action on the motion to dismiss be postponed until after the briefs were all filed in order that the court might have the benefit of appellants' arguments in support of the propriety of the appeal, as against appellee's motion.

It does not appear that the questions raised and argued are so unfounded and lacking in probable merit that it can be inferred therefrom that the appeal was taken as a frivolous appeal or solely for the purpose of delay. Therefore the motion to dismiss the appeal as frivolous is denied.

The court has perceived, however, from an inspection of the transcript in the light of the briefs filed by appellants, that this was an ordinary mortgage foreclosure proceeding wherein the chancellor has properly entered a decree for complainant on bill, answer, and testimony taken and reported to the court showing the existence of an unpaid debt and the fact that a mortgage had been given to secure its payment and not thereafter paid by the mortgagor. The decree as entered has substantial support in the transcript, and no harmful errors of procedure appear to have been committed. Under the circumstances, it would subserve no useful purpose to retain the case on the docket for re-examination of the record or for further consideration, so, following the practice of this court heretofore followed in the cases of Roberts Bros. v. Langford, 99 Fla. 1268, 128 So. 810; Green v. Cook, 102 Fla. 837, 136 So. 454, and kindred cases recently decided by this court, the decree appealed from will be affirmed at this time to finally [117 Fla. 556] dispose of the case and avoid the necessity of a re-examination and reconsideration of this same record at some future date that can only lead to an affirmance.

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5 practice notes
  • Town of San Mateo City v. State Ex Rel. Landis
    • United States
    • United States State Supreme Court of Florida
    • 6 Diciembre 1934
    ...its effectiveness. I do not think it can be said that, in a case where the Legislature has power to enact a law or withhold its enactment [117 Fla. 554] upon the basis of facts which it might have determined for itself while the Legislature was in session, the postponement of the ascertainm......
  • Phifer v. Phifer
    • United States
    • United States State Supreme Court of Florida
    • 2 Mayo 1936
    ...said motion be denied, but that the decree appealed from be and the same is hereby affirmed on the authority of Holtsberg v. McCarty, 117 Fla. 554, 158 So. 123; Treat v. State ex rel. Mitton, 121 Fla. 509, 163 So. 883. Affirmed on motion to quash appeal as frivolous. WHITFIELD, C.J., and TE......
  • National Sur. Corp. v. Sholtz for Use and Benefit of Tyler
    • United States
    • United States State Supreme Court of Florida
    • 28 Febrero 1936
    ...of South Miami v. DuBoise Const.Co., 115 Fla. 619, 155 So. 795; Treat v. State ex rel. Mitton (Fla.) 163 So. 883; Holtsberg v. McCarty, 117 Fla. 554, 158 So. 123. The motion to dismiss as frivolous is accordingly denied, but the judgment affirmed on authority of the cases last cited. Affirm......
  • Peacock v. State Ex Rel. American Mortgage & Finance Corp.
    • United States
    • United States State Supreme Court of Florida
    • 14 Diciembre 1935
    ...C.G.L., section 2920, R.G.S. Upon consideration of the motion, we have concluded to apply the rule laid down in Holtsberg v. McCarty, 117 Fla. 554, 158 So. 123, wherein it was held that where the transcript supports the judgment appealed from and no harmful errors appear, the Supreme Court,......
  • Request a trial to view additional results
5 cases
  • Town of San Mateo City v. State Ex Rel. Landis
    • United States
    • United States State Supreme Court of Florida
    • 6 Diciembre 1934
    ...its effectiveness. I do not think it can be said that, in a case where the Legislature has power to enact a law or withhold its enactment [117 Fla. 554] upon the basis of facts which it might have determined for itself while the Legislature was in session, the postponement of the ascertainm......
  • Phifer v. Phifer
    • United States
    • United States State Supreme Court of Florida
    • 2 Mayo 1936
    ...said motion be denied, but that the decree appealed from be and the same is hereby affirmed on the authority of Holtsberg v. McCarty, 117 Fla. 554, 158 So. 123; Treat v. State ex rel. Mitton, 121 Fla. 509, 163 So. 883. Affirmed on motion to quash appeal as frivolous. WHITFIELD, C.J., and TE......
  • National Sur. Corp. v. Sholtz for Use and Benefit of Tyler
    • United States
    • United States State Supreme Court of Florida
    • 28 Febrero 1936
    ...of South Miami v. DuBoise Const.Co., 115 Fla. 619, 155 So. 795; Treat v. State ex rel. Mitton (Fla.) 163 So. 883; Holtsberg v. McCarty, 117 Fla. 554, 158 So. 123. The motion to dismiss as frivolous is accordingly denied, but the judgment affirmed on authority of the cases last cited. Affirm......
  • Peacock v. State Ex Rel. American Mortgage & Finance Corp.
    • United States
    • United States State Supreme Court of Florida
    • 14 Diciembre 1935
    ...C.G.L., section 2920, R.G.S. Upon consideration of the motion, we have concluded to apply the rule laid down in Holtsberg v. McCarty, 117 Fla. 554, 158 So. 123, wherein it was held that where the transcript supports the judgment appealed from and no harmful errors appear, the Supreme Court,......
  • Request a trial to view additional results

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