Oakland Properties Corporation v. Hogan

• Decision Date: 23 June 1928
• Citation: 96 Fla. 50,117 So. 849
• Parties: OAKLAND PROPERTIES CORPORATION et al. v. HOGAN et al.
• Court: Florida Supreme Court

117 So. 849

96 Fla. 50

OAKLAND PROPERTIES CORPORATION et al. v. HOGAN et al.

Florida Supreme Court

June 23, 1928

Action by the Oakland Properties Corporation against J. J. Hogan and others, wherein application was made for writ of assistance to evict L. C. Miller from certain lands. From a decree granting the writ of assistance, the Oakland Properties Corporation and L. C. Miller appeal.

Affirmed.

See also, 117 So. 850.

Syllabus by the Court

SYLLABUS

Issuance of writ of assistance is largely discretionary with court right to issuance of writ of assistance must be clear. The issuance of a writ of assistance is largely discretionary with the court, but should be granted only where the right of the appellant, in whose favor the writ is sought to be issued, is clear, and, where it is doubtful, the writ should be denied.

Appeal from Circuit Court, Broward County; Vincent C. Giblin, judge.

COUNSEL

Huber Clements & Blackwell, of Miami, for appellants.

Hall, Johnson & English, of Ft. Lauderdale, for appellees.

OPINION

LONG Circuit Judge.

This is an appeal from a decree of the lower court, dated 12th day of January, 1928, granting writ of assistance evicting the appellant L. C. Miller from certain lands in Broward county, Fla., to which lands appellee Hogan held the legal title under a master's deed.

The only question raised by the assignment of error is whether or not the court erred in granting this writ.

The record discloses that on January 6, 1928, notice was served on defendant L. C. Miller in person and by mailing a copy to counsel that application would be made for the writ of assistance on the 12th day of January, 1928.

It is admitted that the case at bar is a companion case to the case of Oakland Properties Corporation, Appellant, v. J. J. Hogan and Middle River Development Company, Appellee, 117 So. 846, designated in the lower court as chancery cause No. 4499. This court, in the companion case, has held that the chancellor was not in error in dismissing the bill as to defendant Hogan is so far as the same affected the rights of said defendant in the 65 acres to which Oakland Properties Corporation had no title at the time of the filing of the bill to foreclose.

The lis pendens was placed of record, and subsequent thereto appellant Miller entered into possession with full notice of appellees' rights, and, in seeking the writ of assistance, the appellee Hogan prayed only for the possession of the 65 acres, the title to which was vested in him under the master's deed.

The court, by its decree having found the right of possession to the 65 acres to be in the appellee Hogan, and the appellant Miller having entered into...