GRACE M. DAYTON
v.
THE STATE LIFE INSURANCE CO.
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In this foreclosure appeal, the Florida Supreme Court affirmed the lower court's order confirming a foreclosure sale, finding that even if notice of the master's report was not given, any such error was harmless and did not constitute substantial error warranting reversal.
The Court affirmed the lower court's order. Even assuming notice was not given and error occurred in confirming the sale without notice, the error was harmless because it did not affect the validity of the confirmed sale itself. The presumption of regularity attaches to the trial court's order where the record is silent on the issue of notice.
“Appellant not being in default nor a decree pro confesso having been entered against her, was entitled to notice of the hearing at which the order was entered confirming the master's report of sale. But in the absence of an affirmative showing that it was not waived, the mere making of an order of confirmation will be deemed to give rise to the presumption on appeal that the notice required was in fact given, or that its absence was waived.”
Establishes the legal standard that a presumption of regularity attaches to trial court orders regarding notice, placing the burden on appellant to affirmatively demonstrate lack of notice.
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Join FLexlaw to unlock all legal intelligenceGrace M. Dayton (appellant/defendant) was the subject of a foreclosure proceeding. A master's report of sale was filed and confirmed by the court. Day…
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— Upon appellee’s motion to dismiss the appeal herein as frivolous the Court has examined the record and has ascertained therefrom as well as from the brief of counsel for appellant herein, that the only question to be decided is that arising on appellant’s assignments of error to the effect that the court below erred in entering the interlocutory order appealed from, which is simply an order refusing to vacate a confirmation of foreclosure sale. Neither the decree of foreclosure nor the order of confirmation itself is appealed from. The motion which was denied by the order appealed from presented no objections to the validity of the confirmed sale, all that was asked for being that the court set aside the confirmation and allow defendant a reasonable time to examine the master’s report in order to consider the terms of sale. It is contended that this should be done because defendant was given no notice of filing of master’s report of sale in the first instance.
Appellant not being in default nor a decree pro confesso having been entered against her, was entitled to notice of the hearing at which the order was entered confirming the master’s report of sale. But in the absence of an affirmative *540showing that it was not waived, the mere making of an order of confirmation will be deemed to give rise to the presumption on appeal that the. notice required was in fact given, or that its absence was waived. Appellant in order to show the contrary should apply to the chancellor for a certificate or other notation in the record, that the order was made without notice. Absence of notice will not be presumed on appeal merely because the record is silent on the subject. The presumption in favor of regularity of the chancellor’s order is sufficient to sustain the order where the record as to notice is silent.
In the present case, assuming that no notice was' given and that error was committed in the confirmation without notice of the master’s report of sale, it conclusively appears that the irregularity was entirely harmless and that therefore the error relied on for reversal is not a substantial one.
. In cases where no substantial errors are made to appear in a record brought here on appeal or writ of error, and the Court in considering a motion to dismiss the appeal or writ of error as frivolous is made aware of that fact from the transcript of the record and from appellant or plaintiff in error’s brief, the Supreme Court impassing upon the motion to dismiss the appeal or writ of error as frivolous, will ignore the motion and affirm the judgment or decree appealed from after finding it free from substantial error. Butler Farms, Inc., v. Hinson, 113 Fla. 860, 152 Sou. Rep. 720; Ronald v. State, ex rel. Harris, 113 Fla. 859, 152 Sou. Rep. 721.
Affirmed on motion to dismiss.
Davis, C. J., and Whitfield, Terrell and Buford, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Treat v. State, 121 Fla. 509 (Fla. 1935)…to warrant its summary dismissal under the statute. Section 4639 C. G. L. 2920 R. G. S.; Butler Farms, Inc., v. Hinson, 113 Fla. 860, 152 Sou. Rep. 720; Ronald v. State, ex rel. Harris, 113 Fla. 859, 152 Sou. Rep. 721; Dayton v. State Life Ins. Co., 114 Fla. 538, 154 Sou. Rep. 208; Shea v. Carlton, 116 Fla. 507, 156 Sou. Rep. 495. A frivolous appeal is not merely one that is likely to be unsuccessful. It is one that is so readily recognizable as devoid of merit on the face of the record that there is littl…
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Shea v. Kittie L. Carlton, 116 Fla. 507 (Fla. 1934)…ed when this case is finally reached ■on our docket in due course, we affirm it now by denying the appellees’ motion to dismiss the appeal as frivolous and entering a judgment disposing of the appeal on its merits. See Dayton v. State Life Ins. Co., 114 Fla. 538, 154 Sou. Rep. 208. Affirmed on motion to dismiss as frivolous. Whitfield, Ellis, Terrell, Brown and Buford, J. J., concur.…
Authorities Cited
- Scott v. Kirtley, 113 Fla. 637 (Fla. 1933)
- Ronald v. State ex rel. John S. Harris, 113 Fla. 859 (Fla. 1934)
- Butler Farms, Inc. v. Loraine A. Hinson, 113 Fla. 860 (Fla. 1934)