Romanach v. A. J. Armstrong Co., 33719
Decision Date | 03 March 1965 |
Docket Number | No. 33719,33719 |
Citation | 172 So.2d 444 |
Parties | Juan ROMANACH and Elda Romanach, Petitioners, v. A. J. ARMSTRONG CO., Inc., a New York corporation, Respondent. |
Court | Florida Supreme Court |
Sibley, Giblin, King & Levenson and Irving B. Levenson, Miami Beach, for petitioners.
Eli Breger, North Miami Beach, for respondent.
We have a petition for writ of certiorari to the District Court of Appeal, Third District, to review its decision in A. J. Armstrong Co., Inc., v. Romanach, 165 So.2d 817 (Fla.App.3rd 1964).
It appears from the opinion below that Mobile Units Manufacturing, Inc., executed a promissory note to respondent as payee to cover the purchase price of certain trucks and secured it by a chattel mortgage covering the trucks. Petitioners either endorsed or guaranteed the note. Upon failure of payment of the note, respondent sued petitioners, as endorsers, in the Circuit Court of Dade County, Florida. Petitioners, among other defenses, alleged respondent had elected its remedy by physically repossessing the trucks pledged under the chattel mortgage and therefore was precluded from maintaining suit against petitioners to collect on the note. The Circuit Court granted summary judgment in favor of petitioners. Further outlining the facts, we set forth the following excerpts from the opinion of the District Court of Appeal:
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It is our opinion that notwithstanding the District Court of Appeal reversed the Circuit Court in order only to stay and suspend the proceedings in the cause in the Circuit Court, and stated it did not reach the merits, in so doing it did--for all practical purposes--conflict with Malone v. Meres, 91 Fla. 709, 109 So. 677; American Process Co. v. Florida White Pressed Brick Co., 56 Fla. 116, 47 So. 942; Helton v. Sinclair, 93 Fla. 1121, 113 So. 568; Voges v. Ward, 98 Fla. 304, 123 So. 785; Kaufman v. International Harvester Co., 153 Fla. 188, 14 So.2d 387; Baer v. General Motors Acceptance Company, 101 Fla. 913, 132 So. 817; and Intertype Corporation v. Pulver, 101 Fla. 1180, 135 So. 793, relied upon by the petitioners
The testimony of the representative of the respondent was to the effect that
'* * * the chattels were being held in storage in Dallas, Texas in the possession of the appellant [respondent], but he was unable to say whether the chattels had been peaceably repossessed or seized under the foreclosure decree of the Texas court.' (A. J. Armstrong Co. v. Romanach, Fla.App., 165 So.2d 817, 818.)
The facts of the possession of the trucks were peculiarly in the knowledge of the respondent and not in the knowledge of the petitioners, the defendants below. When respondent admitted the trucks were in its possession it became incumbent upon it or its representative to explain to the trial court the basis upon which such possession rested. That...
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Mendes v. Dowelanco Indus. LTDA.
...of the Stakeholder Defendants. See e.g. A.J. Armstrong Co. v. Romanach, 165 So.2d 817 (Fla. 3d DCA 1964) (reversed for other reasons, 172 So.2d 444), 1 Fla Jur 2d, Actions, section 36 et seq. Accordingly, it is thereforeORDERED AND ADJUDGED that this action is stayed pending resolution of t......
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