JAMES LENFESTY AND ANNA S. LENFESTY, HIS WIFE, APPELLANTS,
v.
BURTON E. COE, APPELLEE
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The Florida Supreme Court addresses the scope of an appeal from a personal judgment decree for a deficiency balance in a mortgage foreclosure case. The court holds that an appeal from the deficiency judgment does not permit review of the underlying foreclosure decree's regularity, only errors in the deficiency proceedings themselves.
An appeal from a personal deficiency judgment does not allow consideration of questions regarding the regularity (as distinguished from the validity) of the underlying foreclosure decree or prior proceedings. Only errors arising subsequent to the foreclosure decree may be reviewed. The motion for a supersedeas is denied.
“An appeal from a personal decree for the balance of the amount of the decree of foreclosure remaining unpaid over and above the proceeds of the mortgaged property, does not involve a consideration of any question as to the regularity, as distinguished from the validity of the decree of foreclosure and sale, or of any proceeding prior thereto, but only errors arising subsequent to that decree.”
Establishes the primary holding that deficiency judgment appeals have limited scope and do not permit review of the foreclosure decree's regularity
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Join FLexlaw to unlock all legal intelligenceAppellee Coe filed a bill to foreclose a mortgage on real property owned by appellants Lenfesty. A decree pro confesso was entered against the Lenfest…
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Raney, C. J.:
Appellee filed his bill against appellants to foreclose a mortgage on real estate, and decree pro con fesso was entered for want of pleading thereto, and the cause was referred to a master to report the amount due, and he having made his report, a decree was rendered on the 31st day of July, A. D., 1889, foreclosing the mortgage and decreeing a sale of the property covered by it to satisfy the amount found due, which was $1,657.50, "principal and interest, $32.40 moneys expended by the complainant in the protection of his mortgage upon the property, $200 attorney’s fees, and $13.22 costs, the several sums aggregating $1,903.12. A sale having been made, the master made a report of the same, and of the balance remaining unpaid of the amount so adjudged to be due over and above the proceeds of the sale, and for this balance, $526.65, a decree was rendered on the 7th day of September last confirming the sale, and that appellee recover the balance of the said James Lenfesty, under the eighty-ninth equity rule.
On the 4th day of October the appellants entered their appeal in the following form : Now come the defendants in the above cause on this the 4th day of October, A. D., 1889, and within thirty days after the entry of the final decree therein rendered, and enter their appeal from the decree herein rendered, to the Supreme Court of the State of Florida, to be held at the city of Tallahassee, on the second Tuesday in January, A. D., 1890.
The citation issued upon this entry of appeal calls the appellee to appear and show cause why the decree of September 7th, mentioned above, should not be reversed.
Considering the entry of appeal and the citation, our conclusion is, that the decree of the 7th of September is the one appealed from. It is true that the decree of foreclosure of July 31st, is the final decree in the cause according to the ordinary meaning of the term final decree when used with reference to appeals in foreclosure cases, still the term is not so used in the entry of appeal before us. If the word “decree,” appearing subsequently in the entry could otherwise be held to refer not to the same decree as the words “"final decree” dos but to the decree of foreclosure of July, we think we are precluded from regarding it as doing so by the fact that appellants have cited the appellee to answer simply an appeal from the September decree.
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Wiggins & Johnson v. Williams, 36 Fla. 637 (Fla. 1895)…Mabry, C. J.: The interlocutory orders appealed from in this case are those made on June 13th and July 1st, 1891, and we are confined to them at this time. Mann vs. Jennings, 25 Fla. 730, 6 South. Rep. 771; Lenfesty vs. Coe, 26 Fla. 49; 7 South. Rep. 2. The order of June 13tk determined that appellee (complainant below) was entitled to recover damages by reason of the removal by appellants of turpentine from the four and one-half crops of boxes on the lands, described in. the bill…
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Camp Phosphate Co. v. Anderson, 48 Fla. 226 (Fla. 1904)…cutory decrees or orders are made in a case, and only certain ones specified are appealed from, only errors assigned upon the orders so specified can be considered by this court. See Mann v. Jennings, 25 Fla. 730, 6 South. Rep. 771; Lenfesty v. Coe, 26 Fla. 49, 7 [*234] South. Rep. 2; Wiggins & Johnson v. Williams, 36 Fla. 637, 18 South. Rep. 859. If then the decree appealed from is not a final decree, but is only an interlocutory decree, we are restricted to a consideration of the errors assigned thereon…
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Ray v. Trice, 48 Fla. 297 (Fla. 1904)…ript embracing them would cost at least $700 more than the one before us. The decree in that case could not be reviewed in this proceeding even if appellant had been a party thereto (Mann v. Jennings, 25 Fla. 730, 6 South. Rep. 771; Lenfesty v. Coe, 26 Fla. 49, 7 South. Rep. 2), and it is quite evident that even if the record in that case was properly a part of the record in this a very large part of that record would have no bearing upon the questions presented here which are confined to the propriety of…
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