SARAH HOLTSBERG, ET AL.,
v.
BRIAN K. MCCARTY, AS EXECUTOR
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The Florida Supreme Court affirmed a mortgage foreclosure decree entered by the Chancellor, rejecting the appellee's motion to dismiss the appeal as frivolous. The Court found the questions raised had sufficient probable merit to warrant consideration and that the lower court's decree was properly supported by the record.
The Court denied the motion to dismiss the appeal as frivolous, finding the questions raised had probable merit. The Court affirmed the Chancellor's decree, determining it had substantial support in the transcript and involved no harmful procedural errors.
“It does not appear that the questions raised and argued are so unfounded and lacking in probable merit that it can be inferred therefrom that the appeal was taken as a frivolous appeal or solely for the purpose of delay.”
Establishes the standard for dismissing an appeal as frivolous and the Court's conclusion that this standard was not met.
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Join FLexlaw to unlock all legal intelligenceThis was an ordinary mortgage foreclosure proceeding. The Chancellor entered a decree for the complainant based on the bill, answer, and testimony, wh…
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Upon motion filed by appellee to dismiss the appeal in this case as frivolous, this Court entered an order that action on the motion to dismiss be postponed until after the briefs were all filed in order that the Court might have the benefit of appellants’ arguments in support ■ of the propriety of the appeal, as against appellee’s motion.
It does not appear that the questions raised and argued are so unfounded and lacking in probable merit that it can be inferred therefrom that the appeal was taken as a frivolous appeal or solely for the purpose of delay. Therefore the motion to dismiss the appeal as frivolous is denied.
The Court has perceived, however, from an inspection of the transcript in the light of the briefs filed by appellants, that this was an ordinary mortgage foreclosure proceeding wherein the Chancellor has properly entered a decree for complainant on bill, answer and testimony taken and reported to the Court showing the existence of an unpaid debt and the fact that a mortgage had been given to secure its payment and not thereafter paid by the mortgagor. The decree as entered has substantial support in the transcript and no harmful errors of procedure appear to have been committed. Under the circumstances it would subserve no useful purpose to retain the case on the docket for re-examination of the record or for further consideration, so following the practice of this Court heretofore followed in the cases of Roberts Bros. v. Langford, 99 Fla. 1268, 128 Sou. Rep. 810; Green v. Cook, 102 Fla. 837, 136 Sou. Rep. 454, and kindred cases recently decided by this Court, the decree appealed from will be affirmed at this time to finally *556dispose of the case and avoid the necessity of a re-examination and reconsideration of this same record at some future date that can only lead to an affirmance.
Motion to dismiss denied. Decree affirmed.
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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Phifer v. Vannie L. Phifer, 124 Fla. 223 (Fla. 1936)…e it is the judgment of the Court that upon the consideration of appellee’s motion to quash the appeal as frivolous said motion be denied, but that the decree appealed from be and the same is hereby affirmed on the authority of Holtsberg v. McCarty, 117 Fla. 554, 158 Sou. Rep. 123; Treat v. State, ex rel Mitton, 121 Fla. 509, 163 Sou. Rep. 883. Affirmed on motion to quash appeal as frivolous. Whitfield, C. J., and Terrell, Brown and Buford, J. J., concur.…
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Glass v. Layton, 140 Fla. 522 (Fla. 1937)…859, 30 L. R. A. 754; City of Palmetto v. Katsch, 86 Fla. 506, 98 So. 352; Amos v. Postal Telegraph-Cable Co., 76 Fla. 465, 80 So. 293; Mann v. Jennings, 25 Fla. 730, 6 So. 771; Lenfesty v. Coe, 26 Fla. 49, 7 So. 2; Robinson v. Croker, 117 Fla. 582, 158 So. 123; Hale v. Yeager, 57 Fla. 442, 49 So. 544. It is contended for the appellant that the legal effect of the order dismissing the partition suit as to all the defendants therein is to “operate as a complete dismissal and termination of the partition su…
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Nat'l Sur. Corp. v. Honorable David Sholtz, 123 Fla. 110 (Fla. 1936)…inevitably be affirmed when the case is finally reached in due course. City of South. Miami v. DuBoise Const. Co., 115 Fla. 619, 155 Sou. Rep. 795; Treat v. State, ex rel. Mitton, 121 Fla. 509, 163 Sou. Rep. 883; Holtsberg v. McCarty, 117 Fla. 554, 158 Sou. Rep. 123. The motion to dismiss as frivolous is accordingly denied but the judgment affirmed on authority of the cases last cited. Affirmed on motion to dismiss as frivolous. Whitfield, C. J., and Ellis, Terrell, Brown, Buford, and Davis, J. J., concur.…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Roberts Bros. v. Bertie Langford, 99 Fla. 1268 (Fla. 1930)
- Doyle E. Carlton v. Raulerson, 100 Fla. 10 (Fla. 1930)
- Green v. Cook, 102 Fla. 837 (Fla. 1931)