CLARENCE C. CLIFFORD, ET UX.,
v.
EASTERN MORTGAGE & SECURITY COMPANY, ET AL.
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The Florida Supreme Court affirmed a foreclosure decree against Clarence Clifford, rejecting his appeal as frivolous. The court clarified that an appeal is frivolous only if it presents no justiciable question or is readily recognizable as devoid of merit, not merely because reversal is unlikely.
The appeal should not be dismissed as frivolous because it presents justiciable questions properly raised by assignments of error. The bill of complaint sufficiently complied with statutory requirements by identifying the complainant as a Delaware corporation authorized to do business in Florida. The failure to attach mortgage assignment documents does not render the bill insufficient as a matter of law.
“a frivolous appeal is one presenting no justiciable question or one so readily recognizable as devoid of merit on the face of the record that there is little, if any, prospect that it can ever succeed”
Establishes the legal standard for determining whether an appeal is frivolous; requires more than mere improbability of success.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceEastern Mortgage & Security Company held an assigned mortgage on property. The lower court issued a final foreclosure decree against Clifford. Cliffor…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Frivolous Appeal Standard cases and more on FLexlaw
The appeal here is from a final decree of foreclosure of an assigned mortgage. Motion to dismiss the appeal as frivolous is now before the Court. Such motion should be denied on the authority of Treat v. State, ex rel: Mitton, 121 Fla. 509, 163 Sou. Rep. 833, wherein it was held that a frivolous appeal is one presenting no justiciable question or one so readily recognizable as devoid of merit on the face of the record that there is little, if any, prospect that it can ever succeed. In this case the appellant has raised two distinct questions of law, both of which have been properly presented by the record and appropriate assignments of error. The probability, or even likelihood, that the assignments of error will not result in a reversal of the decree appealed from does not render the appeal per se frivolous, where no other circumstance of bad faith is made to appear, other than appellant’s standing on insisting upon technical adherence to rules of procedure as a ground for appellate proceedings.
Section 28 of Chapter 4658, Acts of 1931 (1931 Chancery Act), plainly requires that the name, and, when known,the residence of each plaintiff and defendant, shall be stated in the bill. .The bill of complaint in this case was brought by plaintiff below as “a corporation organized and existing-under the laws of the State of Delaware and duly authorized to transact business in the State of Florida.” Such state*182ment was a sufficient compliance with Section 28 of the Chancery Act as to the place of residence of. the complainant. If for any good cause shown by defendant as ground therefor a more definite and particular statement of complainant’s place of residence was essential to defendant’s interest, it was within the power of the Chancellor to have ordered it on appropriate motion.
The bill of complaint appropriately alleges the status of complainant as an assignee of the morgtage being foreclosed. There is nothing in Section 5748 C. G. L., 3845 R. G. S., to require as a matter of law that where a mortgage has been assigned, the copy of the assignment or assignments of it shall be attached to the bill of complaint in like manner as the original mortgage, or a copy thereof, is required to be so annexed in accordance with that statute, in order to make the bill sufficient to withstand a motion to dismiss.
The case being now before us on a renewal of appellant’s motion to dismiss the appeal as frivolous, and it clearly appearing from a consideration of the record that, notwithstanding the circumstance that this case has not been reached for final hearing on its merits as an appellate controversy, that no reversible error sufficient to warrant a setting aside of the final decree appealed from has been made to appear in the transcript the decree appealed from is now affirmed. See: Holtsherg v. McCarty, 117 Fla. 554, 158 Sou. Rep. 123. Compare Treat v. State, ex rel. Mitton, 121 Fla. 509, 163 Sou. Rep. 883, and cases cited.
Affirmed on motion to dismiss as frivolous.
Whitfield, C. J., and Ellis, Terrell, Brown and Buford, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Joseph T. Miller Constr. Co., Inc. v. Seymour H. Borak, 82 So. 2d 147 (Fla. 1955)…elay. Anderson v. Hardesty, 99 Fla. 1347, 128 So, 851; Walker v. American Agri. Chem. Co., 83 Fla. 153, 90 So. 696; Holland v. Webster, 43 Fla. 85, 29 So. 625; Willey v. Hoggson, 89 Fla. 446, 105 So. 126; Clifford v. Eastern Mortgage & Security Co., 123 Fla. 180, 116 So. 562; 2 Florida Jurisprudence, Appeals, Sec. 236, p. 494. Under this rule, the court makes only a cursory and superficial examination of the record and briefs to determine whether or not questions are presented which may be considered debata…
-
Powell v. N.Y. Life Ins. Co., 141 Fla. 758 (Fla. 1940)…en the mortgagors and the assignee, is it necessary to comply with the statute that a copy of each-of the three papers be made a part of the bill?” See Sec. 3845 R. G. S., 5748 C. G. L.; Clifford, et ux., v. Eastern Mortgage & Security Co., et al., 123 Fla. 180, [*761] 166 Sou. 562, 42 C. J. 83, Sec. 1615; McCarthy’s Fla. Chancery Act, Annotated, 2nd Ed., page 59. Third Question: “Was the description contained in the original mortgage sufficient?” See Trumbull v. McIntosh, 103 Fla. 78, 138 Sou. 34, page…
Authorities Cited
- Treat v. State, 121 Fla. 509 (Fla. 1935)
- Holtsberg v. McCarty, 117 Fla. 554 (Fla. 1934)