THE PERSHING HOTEL CO., INC.,
v.
C. E. STARK
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The Florida Supreme Court affirmed a final decree in a tax sale certificate closing case, rejecting the appellant's challenge to the validity of the decree entered on a decree pro confesso. The court found no reversible error despite the appellant's argument that insufficient evidence supported the final decree.
The decree and orders appealed from are affirmed. The court found the certificate of the Clerk insufficient to overcome the Chancellor's recitation that the decree was entered upon 'proofs,' and the record fails to affirmatively show that all required evidence was not taken orally before the Chancellor under Section 45 of the 1931 Chancery Practice Act. The court also held that the order denying the motion to vacate was made without prejudice to the appellant's right to institute a new suit challenging the court's jurisdiction.
“This certificate of the Clerk is not sufficient to overcome the recitation of the Chancellor that the decree was entered among other things on 'proofs.'”
Establishes that the Chancellor's statement that proofs were considered cannot be overcome by the Clerk's certification that certain documents are not on file.
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Join FLexlaw to unlock all legal intelligenceA final decree for closing a tax sale certificate was entered on May 25, 1934, pursuant to a decree pro confesso on the same day. A sale under the fin…
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Final decree for closing tax sale certificate was entered on May 25th, pursuant to decree pro confesso entered on the same day. Sale under final decree was made on July 2nd, 1934. Order confirming sale was made August 15th, 1934. Petition to vacate final decree and order confirming sale was made and denied November 13th, 1934. On the same day, November 13th, 1934, entry of appeal from final decree, order confirming sale and order denying petition to vacate and set aside final decree and confirmation of sale was made and recorded.
*27The final decree recites:
“This cause coming on for final hearing upon the Bill of Complaint, the decree pro confesso, the record and proofs herein, and the Court having considered the same, finds as follows:”
The certificate of the Clerk of the Court by a deputy recites:
“There is no affidavit of proof of claim attached to the above motion for Final Decree, and there is no record on file in my office of any oral or documentary evidence or testimony in this cause.”
This certificate of the Clerk is not sufficient to overcome the recitation of the Chancellor that the decree was entered among other things on “proofs.”
The record fails to affirmatively show that all evidence required to support every phase of the decree was not taken orally before the Chancellor under Section 45 of the 1931 Chancery Practice Act.
We find no reversible error disclosed by the record; so the decree and orders appealed from should be affirmed.
It is so ordered.
Ellis, P. J., and Terrell, and Buford, J. J., concur.
Whitfield, C. J., and Brown and Davis, J. J., concur in the opinion and judgment.
Whereas it appears that the order made by the Chancellor in the above styled cause denying Petitioner’s motion to vacate final decree and also to vacate order confirming sale was made without prejudice to the right of Petitioner to institute a new suit challenging the jurisdiction of the Court to enter such final decree and order confirming sale, the order entered in this Court on February 21, 1936, affirming the order of the Chancellor above *28referred to shall also be deemed and held to be without prejudice to the Petitioner to file a new suit' challenging the jurisdiction of the Court to enter the final decree and order complained of.
So ordered.
Ellis, P. J., and Terrell, and Buford, J. J.,'concur.
Whitfield, C. J., and Brown and Davis, J. J., concur in' the opinion and judgment.
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Woodcock v. Harton, 146 Fla. 16 (Fla. 1941)…lose a State and county tax sale certificate. No new or novel questions are presented. No reversible error appearing in the record, the decree should be affirmed on authority of the opinion and judgment [*17] in Pershing Hotel Co., Inc., v. Stark, 123 Fla. 26, 165 Sou. 897; Burns, et al., v. Campbell, 131 Fla. 630, 180 Sou. 46, and Inter-City Security Co., et al., v. Barbee, 106 Fla. 671, 143 Sou. 791. It is so ordered. Affirmed. Brown, C. J., Whitfield, Buford and Adams, J. J., concur'.…