Reid v. Miami Studio Properties, Inc.

• Decision Date: 11 July 1939
• Citation: 139 Fla. 246,190 So. 505
• Parties: REID v. MIAMI STUDIO PROPERTIES, Inc.
• Court: Florida Supreme Court

190 So. 505

139 Fla. 246

REID v. MIAMI STUDIO PROPERTIES, Inc.

Florida Supreme Court, Division A.

July 11, 1939

Rehearing Denied Aug. 1, 1939.

Error to Circuit Court, Dade County; Paul D. Barns, Judge.

Action by Joseph C. Reid against the Miami Studio Properties Incorporated, a Florida corporation, to recover deficiency on a mortgage foreclosure decree after foreclosure sale. A demurrer to plaintiff's amended declaration was sustained, and plaintiff brings error.

Judgment reversed.

COUNSEL Redfearn & Ferrell, of Miami, for plaintiff in error.

Alonzo Wilder, of Miami, for defendant in error.

OPINION

TERRELL Chief Justice.

Plaintiff in error, Joseph C. Reid, secured a judgment at law against defendant in error, Miami Studio Properties, Inc., for the sum of $9,000. To secure the payment of said judgment defendant executed two promissory notes secured by a mortgage on certain realty in favor of the plaintiff.

The notes matured and were not paid, so Reid filed suit in equity to foreclose the mortgage. There was a final decree for $10,005 principal and interest, $450 attorney's fees, $20 master's fee, in addition to cost of foreclosure to be taxed by the Clerk of the Court.

Said amounts were by the final decree ordered to be paid within one day and, in default thereof, the mortgaged premises sold and after payment of the amounts designated above, the balance applied on the judgment. The defendant failing to pay as he was adjudged to do, the mortgaged premises were advertised and were sold for the sum of $5,000, which sale was confirmed, the plaintiff being the purchaser.

In his bill to foreclose, complainant prayed for deficiency decree in the event the property did not bring enough to pay the amount of the indebtedness and costs. After deducting fees and the expense of sale, the master had a balance of $4,908.11, which he applied pro tanto on the judgment leaving a balance due of $5,556.89. The Chancellor did not enter a deficiency decree and did not consider this phase of the prayer for relief.

Predicated on these facts, Reid filed his amended declaration to recover the balance due on his foreclosure decree claiming damages in the sum of seven thousand dollars. There was a demurrer asserting that the amended declaration presented no issue to be adjudicated, the reason being that it constituted an attempt to collect a deficiency growing out of a mortgage foreclosure which could not be done because there was a prayer for deficiency decree and that such a prayer constituted an election of remedies which barred complainant from maintaining a common law action to recover. The demurrer was sustained and plaintiff deflining to plead further, final judgment was entered and plaintiff took writ of error.

The sole question presented is whether or not under the facts stated, the plaintiff Reid can now maintain an action at law to recover the amount of the deficiency judgment which he prayed for in the foreclosure but which prayer was not considered.

Defendant in error contends that this question should be answered in the negative because the plaintiff in error elected his forum and is bound by the result of his election. He relies on Provost et al. v. Swinson, 109 Fla. 42, 146 So. 641; Belle Mead Development Co. v. Reed, 114 Fla. 300, 153 So. 843; and Coffrin v. Sayles, 128 Fla. 622, 175 So. 236, to sustain this contention.

Plaintiff in error, on the other hand, contends that the doctrine of election of the forum or as he says more accurately, the election of remedies, has no application to this case. He contends that the question posed should be answered in the affirmative and...