Miami Bank & Trust Co. v. Mahlstedt
| Decision Date | 21 November 1932 |
| Parties | MIAMI BANK & TRUST CO. v. MAHLSTEDT et al. |
| Court | Florida Supreme Court |
Suit by Minna Marie Mahlstedt and others against Miami Bank & Trust Company, a Florida corporation, and another. From an order overruling a demurrer to the bill, the defendants appeal.
Affirmed and cause remanded, with directions. Appeal from Circuit Court, Dade County; Paul D Barns, Judge.
Wilder & Jacobsen, of Miami, for appellants.
E. F P. Brigham, A. J. Rose, and Loftin, Stokes & Calkins, all of Miami, for appellees.
In this case there is an appeal from an order overruling a demurrer to a bill in equity in the nature of a bill of review.
A strict bill of review brought to correct error apparent on the face of the record must ordinarily be filed before the expiration of the time for taking an appeal from the decree whose review is sought. Hall v. Hall, 93 Fla. 709, 112 So. 622.
The bill in the instant case is not a bill of review as that term is used in equity practice. It is in legal and equitable effect an original bill in the nature of a bill of review to have a final decree in a former suit judicially construed as not affecting the liens of certain prior mortgages referred to in such prior suit, and to that extent set the former decree aside on the ground that complainants in the present bill are not legally estopped by the apparent conclusive effect of the former decree on their alleged trustee, First Trust & Savings Bank.
The bill may also be properly construed and held to be an original bill in the nature of a bill of review brought by the First Trust & Savings Bank to impeach the former decree for fraud in its procurement, and to set aside on the ground that, since the rendition of that decree, the First Trust & Savings Bank, against which the former decree was rendered, has discovered evidence material to the former suit, the production of which by it would have resulted in a different determination of the former suit as affects certain mortgages referred to therein, and which evidence could not have been discovered by the exercise of reasonable diligence.
Whatever may be the merits of any defense which appellants may be able to offer, such as laches, estoppel, res adjudicata, and the like, when interposed by answer, it is plain that the present bill contains some equity, and for that reason the general demurrer to it was properly overruled. Reynolds v. Florida Cent. & P. R. Co., 42 Fla. 387, 28 So. 861, affirmed Florida Cent. & P. R. Co. v. Reynolds, 183 U.S. 471, 22 S.Ct. 176, 46 L.Ed. 283; Drawdy Investment Co. v. Robinson, 96 Fla. 397, 118 So. 157; Quinn v. Hall, 37 R.I. 56, 91 A. 71, Ann. Cas. 1917C, 373; Owens v. Forbes' Adm'rs, 9 Fla. 325.
The bill of complaint in the former suit was one brought for the foreclosure of an admittedly third mortgage. The decree sought to be reviewed foreclosed that mortgage in a proceeding where the First Trust & Savings Bank was named as a party representative of the rights of the beneficial owners of the first two mortgages. Upon entry of the decree of foreclosure, but before sale, the appellees except First Trust & Savings Bank, as trustee, filed their bill to foreclose the first two mortgages as against the appellant and others. The defendant Miami...
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