Mccormick v. Bodeker
| Decision Date | 04 April 1935 |
| Citation | 119 Fla. 20,160 So. 483 |
| Parties | McCORMICK v. BODEKER. |
| Court | Florida Supreme Court |
Error to Circuit Court, Lake County; J. C. B. Koonce, Judge.
Action by O. W. McCormick against F. H. Bodeker. To review a judgment for defendant, plaintiff brings error.
Affirmed.
COUNSEL Buie & Hippler, of Eustis, for plaintiff in error.
Thomas H. Cooley, of Mt. Dora, for defendant in error.
The declaration in effect alleges that F. H. Bodeker agreed in writing to purchase described lands from R. S. McCormick that, Bodeker having failed to carry out his agreement, R. S. McCormick brought suit for specific performance of the contract to purchase the land; that by final decree the court found $1,520.48 and costs to be due R S. McCormick, and ordered the clerk to file and record a deed conveying the lands by R. S. McCormick and wife to Bodeker who was ordered to pay R. S. McCormick the sum of $1,520.48 and costs, the same to be a lien on the lands; that, in default of payment, the property be sold and the proceeds used to pay the amounts found to be due to R. S. McCormick that such decree was affirmed on appeal; that thereafter R. S. McCormick 'for a valuable consideration did grant, assign, transfer and set over (to plaintiff) said final decree, together with all of his rights by reason of said decree, the money due and to become due by reason thereof, with interest thereon as by said decree provided to complainant'; that afterwards the property was sold to complainant for $300, and the sale confirmed under the decree, leaving 'a balance remaining due and unpaid to plaintiff in amount $1,664.18 with interest; that defendant Bodeker has failed and refused to pay said sum, wherefore plaintiff sued defendant.
The second count is for money payable by defendant to plaintiff in the sum of $1,664.18 for balance due under the decree. A copy of the decree is attached as a part of the declaration.
The defendant demurred to the declaration and each count thereof severally on grounds:
'3. The declaration discloses that this action is simply an attempt to enforce a deficiency decree without alleging the issuance of any such decree and without alleging any legal predicate for the issuance of any valid deficiency decree in the action for specific performance of contract mentioned in the declaration.
'4. The declaration discloses that no decree for deficiency could validly have been entered in the suit for specific performance mentioned in the declaration.
'5. The declaration discloses that defendant owes plaintiff nothing on the judgment mentioned in the declaration, the declaration showing a satisfaction of said judgment by judicial sale of property involved.
The demurrer was sustained, and the plaintiff amended the declaration by enlarging its allegations without changing the nature and substance of the cause of action stated.
A demurrer to the amended declaration on grounds similar to those above quoted was sustained, and, the plaintiff declining to further amend, final judgment on the demurrer was rendered for the defendant.
The plaintiff took writ of error, assigning as errors:
'1. The Circuit Judge erred in sustaining the Demurrer to Plaintiff's original Declaration.
'2. The Circuit Judge erred in making and entering his Final Judgment sustaining the Demurrer to Plaintiff's Amended Declaration, and entering Final Judgment against Plaintiff.
The question to be determined is whether the final decree rendered in...
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Coral Gables, Inc. v. Patterson
...a deficiency judgment for the balance of the debt. R.E.L. McCaskill Co. et al. v. Dekle, 88 Fla. 285, 102 So. 252; McCormick v. Bodeker, 119 Fla. 20, 160 So. 483. cases from that jurisdiction are to the effect that tender of the deed by the vendor as required by the contract is generally a ......
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MCA Television Ltd. v. Public Interest Corp., 98-2006
...are inconsistent, courts consider "the relation of the parties with reference to the right sought to be enforced." McCormick v. Bodeker, 119 Fla. 20, 160 So. 483, 484 (1935). In Weeke v. Reeve, 65 Fla. 374, 61 So. 749 (1913), for example, the plaintiff alleged fraudulent misrepresentations ......
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Thornber v. City of Ft. Walton Beach
...the proper remedy is not thereby waived. See Board of Public Instruction v. Mathis, 132 Fla. 289, 181 So. 147 (1938); McCormick v. Bodeker, 119 Fla. 20, 160 So. 483 (1935); Matthews v. Matthews, 133 So.2d 91 (Fla. 2d DCA 1961).9 § 57.105, Fla.Stat. (1981), states:The court shall award a rea......
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Williams v. Robineau
... ... 410, 145 ... So. 252; Campbell v. Kauffman Milling Co., 42 Fla ... 328, 29 So. 435; Ziegler v. Brown, 112 Fla. 421, 150 ... So. 608; McCormick v. Bodeker, 119 Fla. 20, 160 So ... 483; and Intertype Corporation v. Pulver (D.C.) 2 ... F.Supp. 4, to support their contention ... ...