Joyner v. Bernard
| Decision Date | 18 May 1943 |
| Parties | JOYNER et al. v. BERNARD. |
| Court | Florida Supreme Court |
On Rehearing July 16, 1943.
Appeal from Circuit Court, Sarasota County; W. T Harrison, judge.
Randolph Calhoun, of Sarasota, for appellant.
John Fite Robertson, of Sarasota, for appellee.
The record in this case having been examined and finding no error in the decree appealed from, the same is hereby affirmed.
Certain phases of the case at bar were considered and decided by this Court in the former appeal. See Joyner v. Bernard, 148 Fla 649, 6 So.2d 533, 534. On petition for rehearing on the former appeal we said:
'The petition for rehearing is accordingly granted and the cause reversed with instructions to the Chancellor to reexamine the matter of accounting between the parties, give the appellants credit for all rents and profits that accrued or should reasonably have accrued, and all amounts paid otherwise on the mortgage and give the appellee credit for necessary betterments and other expenses reasonably incurred, strike a balance between them and give his judgment accordingly.'
On the return of the cause to the lower court, counsel for the respective parties were by the Chancellor heard, pursuant to the aforesaid order made by this Court on rehearing, and thereafter entered the decree, viz.:
'This cause coming on to be heard in accordance with the mandate and opinion of the Supreme Court on rehearing and the court having re-examined the matter of accounting between the parties as directed, doth find: that no error was made in the original accounting; that all of the property was not and did not remain in the hands of complainant after the payment of $10,057.13 as postulated in the statement embodied in the opinion of the Supreme Court reported in 148 Fla. 649, 6 So.2d 533; that all credits were given for rents as and when received, and all credits were given for all amounts otherwise paid on the mortgage as and when received; and that likewise complainant was given credit for necessary betterments and other expenses reasonably incurred; and that on the date of said final decree there was due and owing to the complainant, the amount set forth therein, to-wit, $23,316.54.
'It is therefore ordered, adjudged and decreed that said accounting heretofore made and approved in the final decree is hereby ratified and confirmed and the Master is hereby authorized to proceed with the enforcement of the said final decree as therein provided.'
An appeal from the aforesaid order or decree brought the cause here for the second time, when on May 18, 1943, an order was entered here affirming the order appealed from and on June 15, 1943, appellants' petition for rehearing, on further consideration, was by the Court granted.
In the petition for rehearing the contention is made that the Chancellor in the order appealed from failed and otherwise omitted to carry out the mandate of this Court on the former appeal in that said order did not 'give the appellants credit for all rents and profits that accrued or should reasonably have accrued, and all amounts paid otherwise on the mortgage, and give to appellee credit for necessary betterments, and other expenses reasonably incurred, strike a balance between them and give his judgment accordingly.' The evidence adduced by the parties as disclosed by the record and the law applicable thereto must be considered when disposing of appellants' contention made on petition for rehearing.
The record discloses that the note and mortgage are dated November 5, 1926, and the amount of indebtedness secured thereby was the sum of $15,000. The interest was to be paid monthly at the rate of 8%, and the note provided for the payment of principal in the sum of $400 each month for 29 months, and the balance due thereafter in the sum of $3,400 would become due and payable on May 5, 1929. The aforesaid monthly payments were to be made at the office of the Bernard Investment Company, at Sarasota, Florida. The mortgagee's agents collected from the mortgagors, as testified to by Joseph C. Bernard, prior to November, 1930, the sum of $10,059.13, and these several payments, with date of payment, appear on the original note offered in evidence. An examination of the decree assigned as error discloses that these partial payments made by the mortgagors after November 1926, and prior to November 30, 1930, were not computed and a new balance stated of the principal remaining due on November 30, 1930, as required by a ruling of this Court in the case of Hart v. Dorman, 2 Fla. 445, 50 Am.Dec. 285.
Counsel for appellants requests this Court to find from the evidence adduced that the mortgagee, through its agents, E. J. Bacon...
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Hulsh v. Hulsh
...Croom v. Noll, 6 Fla. 52, 61 (1855). The Deadman's Statute deals only with the competency of the witness to testify. Joyner v. Bernard, 153 Fla. 372, 14 So.2d 724 (1943). Here, although the witness was not incompetent to testify concerning the decedent's actions or nonverbal conduct, it is ......
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