JACOB BECKER, ET AL.,
v.
HENRY H. TAYLOR, RECEIVER
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This case involves a second appeal concerning a foreclosure decree. The court previously held that a default was condoned if payment was made in due course. After the initial appeal, the lower court was allowed to hear an application to withdraw a tender, which was granted. The court now affirms the amended decree requiring payment of the withdrawn tender amount.
The lower court was not limited to dismissing the bill but could take further proceedings as right, justice, and the law warranted. The amended decree requiring payment of the withdrawn tender amount was proper.
“We held that such a course of conduct had the effect of condoning the default in defendants’ payments, provided 'that payment was made in due course.”
Establishes the condition under which the default was excused in the prior appeal.
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Join FLexlaw to unlock all legal intelligenceThe defendants defaulted on trust deed payments, leading to a foreclosure suit. The prior appeal found the default condoned if payment was made. Durin…
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This is the second appearance of this case here. Becker v. City Trust Company, 102 Fla. 682, 136 So. 642. The former appeal was from a decree foreclosing *732a trust deed. It was found that the defendants had defaulted in their payments thereon and that the suit to foreclose was seasonably brought but that at the time it was brought, negotiations were under way to pay up all past due interest and reinstate the trust deed. We held that such a course of conduct had the effect of condoning the default in defendants’ payments, provided 'that payment was made in due course.
During the pendency of the former appeal, on or about April 5, 1931, this Court made an order allowing the Chancellor below to hear and determine an application to withdraw the tender of $12,993.29 placed in the registry of the Court and to pay all amounts that defendant was found to be in default. The application was made and granted and the tender so placed in the registry of the court was withdrawn, and the clerk duly receipted therefor!
On the going down of the mandate, the Chancellor vacated the former foreclosure decree and entered an amended or new decree requiring the defendants to pay the complainant within twelve days from the date of the decree the sum of $12,993.29, being the exact amount previously tendered and withdrawn and which represented all sums due and matured under the trust deed and the bonds secured thereby to January 15, 1930, plus attorney’s fees and costs. The instant appeal is from this new or amended decree.
. Appellants contend that on the going down of the mandate in the former appeal, the court could do nothing but dismiss the bill while appellee contends that it was the duty of the Chancellor to take such further proceedings in the cause as right, justice, and the law of the State would warrant. In entering his amended decree the Chancellor pursued the latter cause which seems to us to have been proper.
*733The judgment of the Chancellor accords with law and justice and is hereby affirmed.
Affirmed.
Davis, C. J., and Whitfield, Terrell, Brown and Buford, J. J., concur.
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Citator
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Adler v. Superior Apts. Corp., 119 Fla. 127 (Fla. 1935)…that decree. The appellants contended that when the mandate from the Supreme Court came down in the first appeal the Chancellor should have dismissed the bill. The Court decided against that contention and affirmed the decree. See Becker v. Taylor, 111 Fla. 731, 149 South. Rep. 591. Upon the mandate in the second appeal being received, [*130] the Special Master gave notice of the sale of the property, the payments required by the decree not having been made. At the appointed time the sale was made and the…
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Spencer v. Gomez, 114 Fla. 688 (Fla. 1934)…y marked nunc pro tunc as of the day it was lodged with the clerk, a capias issued after the information was so lodged is admissible in evidence.” We have also held 'that an information cannot be amended without leave of the court (Fekany v. State, 149 So. 591). So an information, once duly filed, becomes a [*697] court document, and should be kept in the court’s archives rather than in the private files of the prosecuting officer. A mere temporary withdrawal of an information from the clerk’s office with…
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Adler v. Becker, 130 Fla. 330 (Fla. 1937)…Chapman, J. This cause’makes its appearance in this Court for the fifth time. It is reported in Becker, et al., v. The City Trust Company, 102 Fla. 682, 136 Sou. Rep. 642; Becker v. Taylor, Receiver, 111 Fla. 731, 149 Sou. Rep. 591; Adler v. Superior Apts. Corp., 119 Fla. 127, 160 Sou. Rep. 868; State, ex rel. Adler v. Barns, 123 Fla. 184, 166 Sou. Rep. 589. The parties will be referred to herein as they appeared in the court below as plaintiff and defendant…1 / 2
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- Becker v. The City Tr. Co., 102 Fla. 682 (Fla. 1931)