Mabson v. Christ

• Citation: 96 Fla. 756,119 So. 131
• Parties: MABSON v. CHRIST.
• Decision Date: 11 December 1928
• Court: United States State Supreme Court of Florida

119 So. 131

96 Fla. 756

MABSON v. CHRIST.

Florida Supreme Court, Division A.

December 11, 1928

Suit by Herman Christ against Kathleen Mabson and husband. Decree for complainant, and defendants appeal.

Reversed with directions.

(Syllabus by the Court.)

Appeal from Circuit Court, Polk County; H. C. Petteway, Judge.

Palmer, Dickenson, Shurley & Lake, of Tampa, for appellants.

COUNSEL

Don Register, of Winter Haven, for appellee.

On August 13, 1926, Herman Christ, appellee, filed his bill for mortgage foreclosure against appellants, Kathleen Mabson and H. B. Mabson. On November 1, 1926, a decree pro confesso was entered, and on December 16th following an order of reference made to a special master, who took the testimony and filed his report two days later. Final decree was rendered December 27, 1926. This decree found for mortgage debt to be $6,000.66, and allowed $650 as solicitor's fee, and ordered foreclosure sale on default of payment within a limited time, and directed how the proceeds of sale should be applied. There was in the bill a prayer for a deficiency decree in case the property should sell for less than the ascertained debt, but his matter was not mentioned in the final decree of foreclosure. On April 20, 1927 master's report of sale was filed, showing that the property had sold for $2,000, which, after paying the attorney's fee and other expenses of sale, left $1,284.45 in the master's hands to be applied on the mortgage debt. Upon the same date, decree of confirmation of sale was rendered, and deed to purchaser directed. On September 21 1927, a deficiency decree was rendered against H. B. Mabson, one of the defendants, for the sum of $2,722.21, with interest, though the total deficiency was ascertained in the decree to be $4,722.21, with interest from date of sale. This decree recited that the matter came on for hearing upon complainant's motion for a deficiency decree, on August 5, A. D. 1927, after notice to solicitor for complainant and to solicitors for H. B. Mabson, defendant, and that, after argument by counsel for complainant and for said defendant, the court found the equities on said matter to be with the complainant, and, after ascertaining the amount of the deficiency, decreed that the complainant 'do have and recover of and from the said defendant, H. B. Mabson, the sum of $2,722.21, with interest thereon at 8 per cent. per annum from December 16, 1926, to the time of payment, and that execution issue therefor.' From this decree appeal was duly taken.

OPINION

BROWN J. (after stating the facts as above).

Although the bill prayed for a deficiency decree, none was provided for, either in the final decree or the decree of confirmation. Thus this particular prayer in the bill was, in effect, impliedly denied. The decree as against the appellants was based upon a decree pro confesso, and therefore by lapse of time had become absolute under rule 45 of our Equity Rules and section 3158, Rev. Gen Stats. It could not be changed, added to, nor taken from, except as to correction nunc pro tunc of mere clerical errors or misprisions, without resorting to the recognized processes of equity based upon appropriate grounds. It has been well said that there must be some point in every court proceeding when the cause is finally disposed of, its thread cut, and the parties out of court, unless brought in again by some new process served upon them. The public welfare demands that there shall be some definite end to litigation--a point sometime, somewhere, when every case is terminated. We cannot afford to return to the interminable and outrageous practice similar to that depicted in Dickens' case of Jarndyce v. Jarndyce. Especially is this true where, as with us, a court of equity has no stated terms, but is regarded as always open. This point of finality is reached with us, under both the statute and rule 45, 20 days after final decree, when the final decree is based upon decree pro confesso, and, under the statute and rule 90, when the time for rehearing has expired, as to decrees in general. See sections 3158 and 3164, Revised Gen. Stats. Under the English practice the decree was final when enrolled. 21 C.J. 706, 707. In this case, months after rendition of the final and confirmation decrees, neither of which contained any reservation holding the case open for the purpose, a deficiency decree was rendered on motion of complainant with notice to the solicitor of one of the appellants, which notice is shown merely by the recitals in the deficiency decree, and thus a personal judgment rendered against the defendant, without new process, although the right of the complainants to such deficiency decree was not adjudicated nor held open for subsequent disposition in either the final or the confirmation decree. It is true the final decree had as an incident to the foreclosure, adjudicated the existence, validity and amount of the debt, and provided for foreclosure sale and the application of the proceeds to the debt and for the return of the surplus proceeds, if any, to the debtors. But no more. The right to a deficiency decree was not adjudicated. Originally, under equity practice, no deficiency decrees were granted. They, and the right to them, are the creatures of statute or rules of court. And their rendition is not now compulsory in Florida. The court can adjudicate the right and grant the remedy, or not, as it sees fit in the exercise of its sound discretion. The primary purpose of a bill in equity to foreclose a mortgage is now, as from the beginning, to subject the security to the payment of the debt secured. If the adjudication of this matter...