N. H. GARNER, ET UX.,
v.
G. E. SLACK
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This Florida Supreme Court case addresses the procedural requirement for obtaining a deficiency judgment in a mortgage foreclosure action. The court held that while the better practice is to include a special prayer for deficiency in the complaint, a deficiency judgment can be properly granted based on a general prayer for relief if the defendant has adequate opportunity to contest the deficiency claim.
While the better practice is to include a specific prayer for deficiency judgment in the complaint, a deficiency judgment will not be reversed as erroneous when granted on a bill containing a general prayer for relief if the defendant has been afforded adequate opportunity to contest the deficiency claim through subsequent motion or pleading.
“While the better practice is to incorporate in the bill of complaint a special prayer for a deficiency judgment, if one is desired, yet it has been held that if by subsequent appropriate motion, or other pleading, a deficiency judgment is asked for and granted, after an opportunity to contest the right of complainant to a deficiency decree has been afforded to the defendant, a deficiency decree rendered on a bill of complaint containing a prayer for general relief in addition to the prayer for foreclosure, will not be reversed as erroneous.”
Establishes the court's holding that deficiency judgments can be properly granted without a specific prayer for deficiency if the defendant has had opportunity to contest.
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Join FLexlaw to unlock all legal intelligenceGarner brought a foreclosure action against Slack. The bill of complaint contained prayers for foreclosure and general relief, but did not include a s…
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This is a companion case to the case of Garner v. Slack decided at the present term. The only difference between this case and the other case just referred to, is that this is an appeal from a deficiency judgment rendered in a foreclosure case, wherein the bill of complaint did not contain a special prayer for a deficiency judgment, but did contain a prayer for appropriate general relief. Letchworth v. Koon, 99 Fla. 451, 127 Sou. Rep. 321, decided after the decree in this case was entered, is relied on for reversal of the deficiency decree herein appealed from.
While the better practice is to incorporate in the bill of complaint a special prayer for a deficiency judgment, if one is desired, yet it has been held that if by subsequent appropriate motion, or other pleading, a deficiency judgment is asked for and granted, after an opportunity to contest the right of complainant to a deficiency decree has been afforded to the defendant, a deficiency decree rendered on a bill of complaint containing a prayer for general relief in addition to the prayer for foreclosure, will not be reversed as erroneous. See Garner v. Slack, 102 Fla. 635, 136 Sou. Rep. 444.
In this case there was filed in the cause a motion for 'confirmation of the foreclosure sale, and for deficiency judgment. No attack on the complainant’s motion for a deficiency judgment appears to have been interposed by *555defendant as he might have done had he wished to press any objection to the procedure adopted. Harmful error of procedure has not been made to appear as ground for reversal, therefore the decree appealed from should be affirmed.
Affirmed.
Davis, C. J., and Whitfield, Ellis, Terrell, Brown and Buford, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Milo O. Coffrin v. Sayles, 128 Fla. 622 (Fla. 1937)…for general relief, a deficiency decree may be entered upon motion or other appropriate pleading filed after confirmation of sale, and notice given to defendant, giving defendant an opportunity to be heard and to contest the motion. Garnes v. Slack, 112 Fla. 553, 150 So. 750. In other words, the jurisdiction of equity to grant a deficiency decree must be invoked, either by express prayer in the bill, or by subsequent appropriate pleading or motion, upon which the defendant must be given notice and an opport…
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NCNB Nat'l Bank OF Fla. v. Pyramid Corp., 497 So. 2d 1353 (Fla. 4th DCA 1986)…court stated: ... a deficiency decree may be entered upon motion or other appropriate pleading filed after confirmation of sale, and notice given to defendant, giving defendant an opportunity to be heard and to contest the motion. Garner v. Slack, 112 Fla. 553, 150 So. 750. In other words, the jurisdiction of equity to grant a deficiency decree must be invoked, either by express prayer in the bill, or by subsequent appropriate pleading or motion, upon which the defendant must be given notice and an opport…
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Lovilla J. Cooper v. Knight, 117 Fla. 32 (Fla. 1934)…been confirmed; and the deficiency decree was consequently erroneously rendered. The issue of usury presented in defense of a deficiency decree need not be now considered as the order confirming the foreclosure sale is reversed. In Garner v. Slack, 112 Fla. 553, 150 So. 750, the motion for a deficiency decree was not challenged; there was as here a prayer for general relief. See Coe-Mortimer Co. v. Dusendschon, 113 Fla. 818, 152 So. 729; Atlantic Shores Corp. v. Zetterlund, 103 Fla. 761, 138 So. 50. Rever…
Authorities Cited
- Garner v. Slack, 102 Fla. 635 (Fla. 1931)
- Letchworth v. Koon, 99 Fla. 451 (Fla. 1930)