Small v. Colonial Inv. Co.

• Decision Date: 03 August 1926
• Citation: 109 So. 433,92 Fla. 503
• Parties: SMALL et al. v. COLONIAL INV. CO.
• Court: Florida Supreme Court

109 So. 433

92 Fla. 503

SMALL et al. v. COLONIAL INV. CO.

Florida Supreme Court

August 3, 1926

En Banc.

Mortgage foreclosure suit by the Colonial Investment Company against Rosanna Small and others. Decree pro confesso against defendant D. H. Doig. From an order overruling exceptions to a master's report, denying the petition of defendants Rosanna Small and Joseph N. Small to vacate a final decree of sale, order of reference, order confirming sale, and order approving master's report and judgment for deficiency and directing issuance of writ of assistance, the last-named defendants appeal.

Affirmed.

Syllabus by the Court

SYLLABUS

Attorney acting within scope of authority, represents client; acts of omission, as well as of commission, by attorney acting in scope of authority, are regarded as acts of person he represents; neglect of attorney acting within scope of authority is equivalent to neglect of client. An attorney acting within the scope of his authority, repesents his client, and his acts of omission, as well as commission, are to be regarded as the acts of the person he represents, and therefore his neglect is equivalent to the neglect of the client himself.

Where the question is one involving the exercise of judicial discretion, this court will not disturb a decree of the chancellor, except in the interest of justice and to serve some useful purpose.

Erroneous judgment may be affirmed, if reversal would be ineffectual as where same result would be inevitable on retrial. A judgment may be affirmed on appeal, although it is infected with error, if it is apparent that a reversal would prove ineffectual and of no benefit to the party asking it, as where the court can see that the same result would inevitably be reached a second time.

Notwithstanding an irregularity in the proceedings in the lower court, the judgment may be affirmed, where, by reason of the happening of subsequent events, no real controversy any longer exists between the parties.

As general rule, decision of court below is presumed to be correct, unless contrary appears; appellate court will not reverse or disturb judgment of lower court, unless record shows material error by which injustice and wrong has been done to appealing party. The general rule is that the decision of the court below is presumed to be correct, unless the contrary appears, and an appellate court will not reverse or disturb a judgment of the court below, unless there be something in the record to show that the court has committed an error in some material point by which injustice and wrong has been done to the party appealing.

Appeal from Circuit Court, Duval County; Daniel A. Simmons, Judge.

COUNSEL

Andrews & Mahon, of Jacksonville, for appellants.

S. E. Foster, of Jacksonville, for appellee.

OPINION

LONG Circuit Judge.

On the 18th day of May, 1923, appellee, complainant in the lower court, filed its bill in the circuit court of Duval county, Fla., against appellants, defendants in the court below, seeking to foreclose a mortgage assigned to it by the defendant D. H. Doig. A decree pro confesso was entered against the defendant Doig, and the defendants Rosanna Small and Joseph N. Small, through Attorneys McGill & McGill, filed their appearance, and on the 2d day of July, 1923, filed an answer. That upon the filing of the master's report, with his findings, the circuit court, on the 4th day of August, 1923, entered a final decree, under which the property described in the mortgage was sold by the master, and a report of such sale made to the court and filed September 5, 1923, upon which date an order was made confirming the sale. That on the 4th day of October, 1923, appellants Rosanna Small and Joseph N. Small, by their attorneys, Andrews & Mahon, filed a petition to vacate the final decree, order of reference, order confirming sale, and order approving master's report and judgment for deficiency, to which petition an answer was filed, and thereafter a master was appointed to take testimony upon the issues presented by the motion and the answer, whose report was filed on December 11, 1923, and exceptions filed thereto on the 8th day of January, 1924. That an application was made to the court on October 10, 1923, for a writ of assistance, rule to show cause issued, and on November 13, 1923, an order was made extending the time for taking testimony. On the 3d of May, 1924, the chancellor entered an order overruling the exceptions to the master's report, denying the petition of the defendants filed October 4, 1923, and directing the issuance of the writ of assistance. From this order, defendants Rosanna Small and Joseph N. Small appealed.

There are 17 assignments of error, a number of which are abandoned in the brief of appellants. The assignments argued attack the irregularity of the proceedings and are based upon the ground that the testimony fails to show that the defendant Rosanna Small, owner of the property, had notice or due notice of the time and place of the hearing before the special master at the time the testimony was taken upon the bill and answer, to wit, July 30, 1923.

The bill alleges that the mortgage foreclosed and the notes secured thereby were executed by the defendants Rosanna Small and Joseph N. Small, mortgagors, to Louis H. Hill, mortgagee March 27, 1917. The notes, 12 in number, payable each 90 days, the last to become due 36 months from date. That on the 12th of April, 1917, the mortgagee, Louis H. Hill, executed to the defendant D. H. Doig an assignment of this mortgage and of the notes secured thereby, who, on the...