W. H. TROUTMAN, APPELLANT,
v.
FRANK COUTURE, H. A. CATES, WM. R. PLUMMER, WALTER VON HALLEROFF, R. R. GOLEMBOSKE AND C. L. BOYSON, APPELLEES
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In this chattel mortgage foreclosure case involving an airplane, the Florida Supreme Court reversed and remanded a Circuit Court decree due to an inconsistency in the stated lien amount, while affirming the foreclosure itself.
The decree must be reversed and remanded solely to correct the mathematical inconsistency regarding the lien amount. The appellate court will presume that the lower court's findings are correct when testimony is not presented for review, and will not consider statements in briefs as part of the record.
“There is no statute, rule of court or custom authorizing us to consider statement's in any brief as part of the record, for reasons which are obvious”
Establishes the principle that brief statements cannot be treated as part of the appellate record
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Join FLexlaw to unlock all legal intelligenceW. H. Troutman brought a foreclosure action on a chattel mortgage against Frank Couture and others. The Circuit Court of Dade County entered a final d…
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Andrews, Commissioner:
This case is here on appeal from the Circuit Court of Dade County from a final decree based upon the foreclosure of a chattel mortgage upon an airplane. The appellant' here was complainant below and appellees here were defendants below.
There are four assignments of error based upon the entry of the final decree. The transcript of the record contains no testimony and the legal assumption is that the evidence supports the findings and decree of the court. A rather unusual departure evidenced in the transcript before us is that included in it is found the four briefs presented to the lower court at the final hearing, all of which discuss the evidence.
There is no statute, rule of court or custom authorizing us to consider statement's in any brief as part of the record, for reasons which are obvious; and more particularly statements in a brief as to what the evidence was when the evidence is not presented to this court in a transcript or otherwise according to established rules.
There are part's of the record which may under the rules be treated as a hearing on bill and answer, without reference to the statements in briefs undertaken to be included as part of the record; and when thus considered, the decree of the lower court appears sustained by the sworn allegations of the bill and the answers which are exhibited to us in the transcript.
“When the findings of a chancellor is based partially or wholly on the testimony is not brought up for review, this court will indulge the presumption that the findings of the chancellor was correct.” Stratton v. Andrews, 90 Fla. 375, 105 So. R. 842.
The fourth assignment of error raises a point which will require a reversal of this case but only for the purpose of correcting an error apparent on the face of the record of the final decree.
The decree provides “that said property be sold sub ject to the lien or liens of the defendant Frank Couture’s mortgage and bill of sale securing an indebtedness of $450.00,” while in a former part of the judgment it is decreed that the first lien of Couture is for “the amount of $500.00.”
The case is therefore, reversed and remanded for the purpose of directing the lower court to enter a final decree correcting the error in the decree above pointed out.
Per Curiam.—The record in this cause having been considered by the Court, and the foregoing opinion prepared under Chapter 14553, Acts of 1929, adopted by the Court as its opinion, it is considered, ordered and decreed by the Court' that the decree of the’ Court below should be, and the same is hereby, reversed and the cause remanded for appropriate proceedings.
Terrell, C. J., and Whitfield, Ellis, Strum, Brown and Buford, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Albert v. Applegate et ux., 377 So. 2d 1150 (Fla. 1979)…ht forward by the appellant is inadequate to demonstrate reversible error. E. g., South Florida Apartment Association, Inc. v. Dansyear, 347 So. 2d 710 (3d DCA Fla. 1977); Strickland v. Lewis, 328 So. 2d 244 (1st DCA Fla. 1976); Troutman v. Couture, 98 Fla. 889, 124 So. 443 (1929). See also cases cited above for conflict. The order of the district court of appeal is quashed and the cause remanded for entry of an order affirming the final judgment of the trial court. It is so ordered. OVERTON and ALDERMA…
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Brown v. Householder, 134 So. 2d 801 (Fla. 2d DCA 1961)…is based partially or wholly on testimony not brought up in the record-on-appeal, the appellate court will indulge the presumption that the finding is correct. Stratton v. Andrews, Fla. 1925, 90 Fla. 375, 105 So. 842; Troutman v. Couture, Fla. 1929, 98 Fla. 889, 124 So. 443; State v. Atlantic Title Co., Fla. 1935, 118 Fla. 402, 158 So. 888. It has further been held that, in the absence of a transcript of the evidence, it must be assumed from an order granting a motion for a directed verdict that there was…
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State v. Atl. Title Co., 118 Fla. 402 (Fla. 1935)…ecree of the Chancellor is based on evidence not brought up for review this Court will indulge the presumption that the decree below was correct and affirm the judgment. Stratton v. Andrews, 90 Fla. 376, 105 So. 842; Trotman v. Couture, 98 Fla. 889, 124 So. 443. In the case at bar there is no dispute about the essential facts and there is ample in the record to warrant an adjudication of the main question presented which we think must result in an affirmance. We do not think that the transaction involved…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Stratton v. Andrews, 90 Fla. 375 (Fla. 1925)