W. H. TUNNICLIFFE, AS RECEIVER OF THE AMERICAN BANK & TRUST COMPANY, A BANKING CORPORATION OF DAYTONA BEACH, FLORIDA, ET AL., APPELLANTS,
v.
VOLUSIA COUNTY BOND & MORTGAGE COMPANY, A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF FLORIDA, APPELLEE
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The appellate court affirmed a foreclosure decree, holding that technical errors in the decree's amount were harmless to a second mortgagee who did not demonstrate they would have redeemed the property even if the errors were corrected.
No, a foreclosure decree should not be reversed for technical errors that are harmless and do not affect the appellant's ability or intent to redeem the property. The appellant failed to show how the alleged errors in the decree's amount prejudiced their rights as a second mortgagee.
“A decree of foreclosure rendered after a full hearing on the merits, which does not clearly appear to be erroneous, should not be reversed on appeal for merely technical, formal and unimportant irregularities in the proceedings which may be disregarded on the principle of harmless error, or which may be deemed to have been waived by failure to object in due season, nor should such decree of foreclosure be reversed at the instance of a second mortgagee for alleged errors in the amounts of indebtedness decreed against the original mortgagor, where it does not appear that said second mortgagee would have-redeemed from the admittedly correct portion of the first, mortgage debt included in the decree, if the alleged excessive items were eliminated, the error complained of' merely in the amouni of the decree against the original mortgagor being harmless against the second mortgagee who expresses no desire to redeem from, or pay the decree, to the extent it was lawful to render it in favor of the first mortgagee.”
This quote explains the court's reasoning for not reversing the foreclosure decree based on technical errors, emphasizing the principle of harmless error and the appellant's failure to show prejudice.
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Join FLexlaw to unlock all legal intelligenceThe appellant, a second mortgagee, appealed a final decree of foreclosure entered against the mortgagor. The appeal was based on purely formal and tec…
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Final decree of foreclosure was entered by the chancellor in a proceeding in which the appellant here was joined as a party because he was the holder of a second mortgage on the lands involved. There is no coni test as to priorities, and the grounds of error urged as a .basis for reversing the decree .appealed from are purely formal and technical.
*751No showing is made that the alleged errors complained of were harmful to appellant’s rights as a second mortgagee, nor does it appear that appellant would redeem from the decree in favor of'the first mortgage holder, if all the several items of indebtedness included in the amount of the decree were corrected to what appellant says they should have been when the decree was entered. See Anderson v. Harrison, 73 Fla. 1044, 75 Sou. Rep. 534.
A decree of foreclosure rendered after a full hearing on the merits, which does not clearly appear to be erroneous, should not be reversed on appeal for merely technical, formal and unimportant irregularities in the proceedings which may be disregarded on the principle of harmless error, or which may be deemed to have been waived by failure to object in due season, nor should such decree of foreclosure be reversed at the instance of a second mortgagee for alleged errors in the amounts of indebtedness decreed against the original mortgagor, where it does not appear that said second mortgagee would have-redeemed from the admittedly correct portion of the first, mortgage debt included in the decree, if the alleged excessive items were eliminated, the error complained of' merely in the amouni of the decree against the original mortgagor being harmless against the second mortgagee who expresses no desire to redeem from, or pay the decree, to the extent it was lawful to render it in favor of the first mortgagee. Small v. Colonial Investment Co., 92 Fla. 503, 109 Sou. Rep. 433; Fagg Mill Work & Lumber Co. v. Greer, 102 Fla. 955, 136 So. Rep. 679.
Affirmed.
Whitfield, P. J., and Terrell, J., concur.
Buford, C.J., and Elms and Brown, J.J., concur in the opinion and judgment.
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Kersey v. Sinclair Ref. Co., 109 Fla. 528 (Fla. 1933)…6 Sou. Rep. 863. The final decree foreclosing the mortgage was entered after full hearing on the merits and does not appear to be clearly erroneous, so it must be affirmed on the authority of Tunnicliffe v. Volusia County Bond & Mortgage Co. (Fla.), 137 Sou. Rep. 885. Affirmed. Davis, C. J., and Ellis and Terrell, J. J., concur. Whitfield, P. J., and Brown and Buford, J. J., concur in the opinion and judgment.…
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U-M Publ'g, Inc. v. Home News Publ'g Co., Inc., 279 So. 2d 379 (Fla. 3d DCA 1973)…ey of record rather than substituted counsel. . Laws 1971, c. 71-5, §§ 1-3. . See note 1, supra. . Lashins v. Baumann, Fla.App.1967, 201 So. 2d 495. . Rhea v. DeVault, 108 Fla. 591, 146 So. 643; Tunnicliffe v. Volusia County Bond & Mortgage Co., 103 Fla. 750, 137 So. 885.…
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City OF ST. Petersburg v. Shannon, 156 So. 2d 870 (Fla. 2d DCA 1963)…Fla. 107, 100 So. 147, 33 A.L.R. 682; Kaufman v. City of Tallahassee, 1922, 84 Fla. 634, 94 So. 697, 30 A.L.R. 471; City of Tallahassee v. Kaufman, 1924, 87 Fla. 119, 100 So. 150; City of West Palm Beach v. Grimmett, 1931, 102 Fla. 680, 136 So. 320, 137 So. 885; City of Miami v. McCorkle, 1940, 145 Fla. 109, 199 So. 575. The Supreme Court has further stated that: “Reckless driving of fire trucks on the streets of a city is manifestly not es [*874] sential to efficiency in fire fighting, and .such conduct n…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rosanna Small v. Colonial Inv. Co., 92 Fla. 503 (Fla. 1926)
- Fagg Mill Work & Lumber Co. v. Blanche C. Van Every Greer and Paul Greer, 102 Fla. 955 (Fla. 1931)