MICHAEL MARX, ET AL.,
v.
AUBREY V. WITHERS, ET AL.
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Appellants Marx and others appealed a final decree dismissing their mortgage foreclosure complaint against Withers and others. The Florida Supreme Court affirmed the dismissal, rejecting all five arguments raised on appeal, including challenges to procedural orders, jurisdiction, and evidentiary findings.
The court affirmed the dismissal decree. Complainants who moved for the referral to a special examiner cannot challenge that order. The trial court properly entered a final decree dismissing the bill against all defendants without first dismissing absent defendants. The conflicting evidence regarding discharge of the obligation supports the Chancellor's findings, and appellants did not meet their burden of showing the findings were clearly erroneous.
“The complainant, having moved for the order, cannot be heard to challenge the propriety thereof when made in accordance with his motion.”
Establishes the principle that a party who requests a procedural order cannot later challenge it on appeal.
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Join FLexlaw to unlock all legal intelligenceAppellants filed a bill of complaint to foreclose a mortgage against Withers and other defendants. The trial court referred the case to a special exam…
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Appellants present five questions for determination by this Court on an appeal from a final decree dismissing a bill of complaint to foreclose a mortgage.
The first two questions challenge the order of the court referring the cause to a special examiner on motion of complainants. The complainant, having moved for the order, cannot be heard to challenge the propriety thereof when made in accordance with his motion.
The third question challenges the action of the Court in making an order of reference without the appointment of a Guardian ad litem to represent minor defendants. The order of reference appears to have been made on motion of complainants and, therefore, they cannot be heard to complain of it.
*693The fourth question challenges the jurisdiction of the court to enter a final decree in the absence of showing of service of process on or appearance of certain defendants remaining parties to the cause. Complainants did not move to dismiss the absent parties. The order dismissing the bill dismisses all defendants and does not prejudice any defendants. The complainants’ position or status is not prejudiced because some defendants were not dismissed before final decree dismissing bill of complaint.
The fifth question challenges the sufficiency of the evidence to establish the defense interposed to the effect that the obligation had been discharged before suit. The evidence is conflicting and following the well established rule in this jurisdiction, the decree of the Chancellor on the evidence will not be disturbed unless it is made clearly to appear that the findings of the Chancellor were erroneous. The appellants have not met this burden.
The decree should be affirmed.
It is so ordered.
Affirmed.
Ellis, P. J., and Terrell, J., concur.
Whitfield, C. J., and Davis, J., concur in the opinion and judgment.
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E. L. Hawkins de bonis non of the Estate of Wise Perry v. Perry, 146 Fla. 766 (Fla. 1941)…er of July 23, 1940, dismissing the cause was entered at the instance and request of the plaintiff, the appellant here, he cannot be heard to challenge the correctness of such order. See Dorman v. Dorman, 125 Fla. 280, 169 Sou. 867; Marx v. Withers, 119 Fla. 692, 160 Sou. 662; Borst v. Gale, 99 Fla. 376, 126 Sou. 290. The appeal from that order will not serve as the vehicle to bring up for review orders as to which the time for appeal has expired. It, therefore, follows that the appeal should be dismissed…
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Farr v. Rhoda Farr (Landis), 249 So. 2d 761 (Fla. 3d DCA 1971)…ham v. Levin, Fla.App.1963, 155 So. 2d 883. No objection was made by the appellant to the appointment of a special master and, in fact, it appears that he consented to same. Therefore, no error has been demonstrated in this regard. Marx v. Withers, 119 Fla. 692, 160 So. 662; Moore v. Hendry, 126 Fla. 411, 171 So. 228; Marsh v. Sarasota County, Fla.App. 1957, 97 So. 2d 312; Karl v. David Ritter, Sportservice, Inc., Fla.App. 1964, 164 So. 2d 23. Lastly, the certified public accountant was the accountant for…
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Ellis S. Rubin v. Gordon, 165 So. 2d 824 (Fla. 3d DCA 1964)…der of July 23, 1940, dismissing the cause was entered at the instance and request of the plaintiff, the appellant here, he cannot be heard to challenge the correctness of such order. See Dorman v. Dorman, 125 Fla. 280, 169 So. 867; Marx v. Withers, 119 Fla. 692, 160 So. 662; Borst v. Gale, 99 Fla. 376, 126 So. 290.” On the authority of Hawkins v. Perry, supra, and the other cases cited therein, the instant appeal must be dismissed. Moreover, it is our view that the procedure employed circumvented the nor…