Joyner v. Bernard

• Decision Date: 13 July 1948
• Citation: 36 So.2d 364,160 Fla. 681
• Parties: JOYNER et al. v. BERNARD.
• Court: Florida Supreme Court

36 So.2d 364

160 Fla. 681

JOYNER et al. v. BERNARD.

Florida Supreme Court

July 13, 1948

Rehearing Denied July 29, 1948.

Appeal from Circuit Court, Sarasota County; W. T Harrison, judge.

Randolph Calhoun, of Sarasta, for appellants.

John Fite Robertson, of Sarasta, for appellees.

CHAPMAN, Justice.

This is a mortgage foreclosure suit originating in the Circuit Court of Sarasota County, Florida, on June 6, 1938. The note and mortgage involved were for the sum of $15,000.00 and dated November 6 1926, bearing interest at the rate of 8%, which became due and payable monthly, after maturity, on the 5th of each month, along with the sum of $400.00 on the principal, for a period of 29 months, and the remaining amount of the principal in the sum of $3,400.00 became due and payable on May 5, 1929. The case comes here for the third time. See Joyner v. Bernard, 148 Fla. 649, 6 So.2d 533, and Joyner v. Bernard, 153 Fla. 372, 14 So.2d 724. Many of the points adjudicated and put at rest on the two former appeals are argued as error on this, the third appeal. This contention ignores the doctrine of the 'law of the case' previously adopted and enunciated by this Court on many occasions. See Oates v. New York Life Insurance Co., 144 Fla. 744, 198 So. 681, and similar cases.

We have defined 'the law of the case' as the points adjudicated by an appellate court upon a writ of error or upon appeal and are no longer open for consideration. The rule is inapplicable to and not decisive of points presented on a second appeal that were not presented upon the former appeals. The record discloses that on former appeals we ruled upon the questions of usury, estoppel and bigamous marriage, but sent the cause back to the court below for a further hearing and determination of the exact amount due the plaintiff on the note and mortgage after allowing all lawful credits.

For the purpose of determining the exact amount due under the note and mortgage involved in this controversy we entered an order of reversal and, in part said (text 153 Fla. 378, 14 So.2d 726): 'The mortgagee should be allowed to adduce testimony establishing with reasonable certainty the number of rental houses taken over by it subject to the mortgage and the total amount of money received as rents and profits and the period of time the property was in its possession. Likewise these issues may be controverted by competent evidence to be adduced by the mortgagor and in addition thereto evidence as to a reasonable rental value of the mortgaged premises possessed by the mortgagee and the exact houses and the period of time mortgagee was in possession. * * *'

On the going down of our mandate the cause was again referred to Honorable Glover E. Ashby, as Special Master, who heard the evidence of the respective parties and reported the same to the Chancellor below, with recommendations as to the terms of a final decree. The cause again was heard by the Chancellor on exceptions to the Special Master's report and on motion...