Quee v. Breed

• Decision Date: 03 January 1936
• Citation: 122 Fla. 316,165 So. 56
• Parties: QUEE v. BREED et al.
• Court: Florida Supreme Court

165 So. 56

122 Fla. 316

QUEE v. BREED et al.

Florida Supreme Court, Division B.

January 3, 1936

Suit by Florence B. Breed, a widow, and others against John Quee wherein judgment was entered for plaintiffs. From a judgment dismissing a bill of review, defendant appeals.

Affirmed. Appeal from Circuit Court, Duval County; Miles W. Lewis, judge.

COUNSEL

Harry Katz, of Jacksonville, for appellant.

Fred B Noble and S. S. Blondheim, both of Jacksonville, for appellees.

OPINION

TERRELL Justice.

In June, 1932, appellee filed her bill of complaint against appellant in the circuit court for Duval county to foreclose a mortgage on described real estate. A final decree was in due course entered, the property was sold, the sale confirmed, and by writ of assistance the defendant was dispossessed and the complainant placed in possession.

On December 30, 1933, more than eight months subsequent to the entry of the final decree in the foreclosure suit, the appellant as complainant who was defendant therein filed his bill of review praying that the final decree of foreclosure be reviewed, reversed, and set aside because the order appointing the special master had never been enrolled and filed in the office of the clerk of the circuit court or recorded in the minute book or the chancery order book, as a result of which appellant had suffered manifest injury. A motion to dismiss was granted, and this appeal was taken therefrom.

It appears from the record that the final decree of foreclosure sought to be reviewed was entered April 21, 1933, and the bill of review was filed December 30, 1933, more than eight months later. The rule in this state is that bills of review based upon the record must be brought within the time for taking appeals or writs of error which is six months. It therefore appears that the bill of review in this case came too late. Zewadski v. Barksdale, 86 Fla. 552, 98 So 590.

Aside from this question, however, it is our view that orders appointing special masters are not required to be recorded in the minute or chancery order books.

Section 1, chapter 11992, Acts of 1927, being section 4949, Compiled General Laws 1927, among other things provides that orders appointing general or special masters need not be recorded in the minutes of the court or the chancery order book.

Appellant contends that section 4949, Compiled General Laws 1927 was repealed by the repealing clause of section 78, 1931 Chancery Act (chapter 14658), it being in conflict with section 54 of said act. Appellee contends, on the other hand, that the repealing clause of section 78, 1931 Chancery Act, is mere surplusage and contributes nothing to the repealing effect of that act because...