E.O. Painter Fertilizer Co. v. Foss
| Decision Date | 27 December 1932 |
| Citation | 145 So. 253,107 Fla. 464 |
| Parties | E. O. PAINTER FERTILIZER CO. et al. v. FOSS et al. (three cases). |
| Court | Florida Supreme Court |
Rehearing Denied Jan. 18, 1933.
Suit by Harold G. Foss and others against the E. O. Painter Fertilizer Company and another. From an order denying to Simon F. Williams, as receiver for the defendant corporation leave to intervene and file an answer, the defendants and receiver appeal, and from an interlocutory order denying defendants' motion to quash the summons in chancery, and denying defendant leave to file amended answer, and denying motion to dismiss complainants' bill and from final decree, the defendant appeals.
Affirmed.
Newcomb Barrs, of Jacksonville, for appellants.
Milam McIlvaine & Milam, of Jacksonville, for appellees.
Three appeals have been consolidated for disposition at one hearing in this court. But all three of such appeals concern the same suit and relate to the same general controversy.
The first appeal is from two interlocutory orders which denied the motion of the defendant below to quash, because of illegal service thereof, a summons in chancery, denied the defendant leave to file an amended answer proposed to be filed, and denied a motion to dismiss the complainants' bill. The second appeal is from an order denying to one Simon F. Williams, as receiver for the defendant corporation, leave to intervene and file an answer coupled with a motion to dismiss the bill. The third appeal is from the final decree, which adjudicated the equities in favor of complainant and awarded a foreclosure of mortgage against the defendant. All the appeals have been argued orally and each has been fully and separately briefed.
In Hartman v. Pool, 139 So. 589, we held that where interlocutory orders in a chancery cause have been made, and thereafter appealed from under the statute permitting appeals from interlocutory orders, a final decree subsequently entered may sometimes cure the errors complained of in the appeals taken from the interlocutory orders, in cases where the final decree is such as ought to be affirmed. We therefore consider first in this case the correctness of the final decree appealed from in order to determine whether the final decree, if correctly entered at the time, has by its rendition made any of the questions presented on the two preceding interlocutory appeals unnecessary to decide.
The suit below was brought to foreclose a mortgage covering present and future advances evidenced by an acknowledgment in the mortgage of the initial advance, coupled with a covenant relating to the future advances agreed to be made up to the amount of a $50,000 promissory note simultaneously executed. The bill of complaint alleged the making by E. O. Painter Fertilizer Company of the mortgage sought to be foreclosed which fact was admitted by the answer. It was also alleged that in connection with the giving of the mortgage, the defendant fertilizer company had executed its promissory note for $50,000, with the intention that said $50,000 note was to evidence the maximum sum of money that might become due and payable for future advances under the mortgage. The mortgage itself recited in its terms that it was given to secure repayment of the sum of $20,000 acknowledged to have been advanced to it by the mortgagee at the time of the delivery of the mortgage, together with 'such further sums of money, not exceeding in the aggregate the sum of Fifty Thousand ($50,000.00) Dollars, as the said mortgagee shall advance to or shall pay as a guarantor or as indorser for the said mortgagor, on the security of the mortgage' with interest thereon.
The court in its final decree ordered the mortgage to be foreclosed for the indebtedness evidenced by divers and sundry promissory notes found by the chancellor to have been executed by the mortgagee to evidence 'sums of money loaned, advanced and paid to said defendant by Harold G. Foss, the complainant, on the security of the mortgage' being foreclosed. The aggregate amount of such notes described in the final decree was approximately $38,000. The sum of $3,900 was allowed as a solicitor's fee.
The defendant's original answer put in issue the amount of the indebtedness due for which foreclosure should be decreed, by denying that many of the items for which recovery was claimed in the bill under the mortgage clause for 'advances' were actually 'advanced' as alleged, under such circumstances that they would come within the purview of the mortgage. The attempted amended answer was in substance the same as the original, except that the amended answer undertook to set up usury charged by complainant, through a scheme by which complainant was to have obtained, and did obtain, a certain stock bonus consisting of capital stock of the debtor corporation in addition to the interest charged. The cause was disposed of at final hearing upon the basis of the issues raised by the original answer, as determined upon the proof taken after the cause was referred to a special examiner for taking and reporting the testimony.
Considering first the sufficiency of the proof to support the decree for complainant on the issues actually tried and considered on the basis of the original answer, we are required to affirm that decree on the settled authority of the rule long prevailing here, to the effect that an appellate court cannot reverse a chancellor's findings on the facts, unless the findings are clearly wrong, where there is some substantial evidence warranting the finding that was necessarily made in the course of rendering the ultimate decree that was actually made on the merits. Washington Loan & Trust Co. v. Hutchinson, 144 So. 343, decided October 18, 1932, at the present term.
The necessity for our affirmance of the final decree on its merits renders it unnecessary for us to consider any of the other propositions involved in the two preceding interlocutory appeals, except such propositions thereby presented that, had they been sustained before the final decree was entered, would have changed the issues upon which the case was decided at the time the final decree was rendered. See Hartman v. Pool (Fla.) supra.
The only proposition involved in the preceding appeals which, if sustained, would have materially changed the issues heard and passed upon after the testimony had been taken and the case brought to final hearing, is the assignment of error involved on the second appeal to the effect that the...
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