MARY LOUISE MCCUTCHEN, APPELLANT,
v.
ANN HILLMAN, APPELLEE
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The trial court's order on mandate was affirmed because all issues and defenses could have been raised in the original trial.
This is an interlocutory appeal from a trial court's order on mandate following a prior appeal. The petitioner sought to present new evidence on reman…
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This is an interlocutory appeal to review an Order on Mandate entered by the trial court pursuant to an opinion of this court in a prior appeal. Hillman v. McCutchen, Fla.App.1964, 166 So.2d 611. The facts are fully reported therein and it will serve no useful purpose to recite them here.
The trial court issued its Order on Mandate, requiring that the mortgaged property be sold unless the amounts it found to be due were paid. Petitioner challenges this order, claiming that she should have been permitted to present evidence on remand of the amounts due on the mortgage. The amounts due on the mortgage were ■determined after a full and complete hearing of the cause, prior to the first appeal.
There are no defenses or issues of facts to be decided that could not have been determined at the original trial of the cause, if they had been properly raised.
It is well settled that a judgment is conclusive as to defenses which have, or might have been set up. Florida Real Estate Commission v. Harris, Fla.1961, 134 So.2d 785.
For the reasons stated, the order appealed from is
Affirmed.
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Donner v. Donner, 302 So. 2d 452 (Fla. 3d DCA 1974)…ed in footnote No. 7, at pp. 788-789. However, it necessarily follows that a judgment is not conclusive of a defense which was not set up, and which was not a matter to be set up as a defense in the prior action. McCutchen v. Hillman, Fla. App.1965, 177 So. 2d 893. [*459] The defense asserted in this case is not one that “was or might have been set up” in the divorce action in Alabama. It was a matter or defense to be “set up” after the death of the promisor, if and when an action should be filed for enforcem…
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Rosen v. Hunter, 227 So. 2d 689 (Fla. 3d DCA 1969)…964, 159 So. 2d 873. However, the appellant’s motion, framing the issues for our resolution, will suffice to invoke this court’s jurisdiction for purposes of settling the issue regarding equity of redemption. Eg., McCutchen v. Hillman, Fla.App.196S, 177 So. 2d 893; D. E. R. Company v. Warriner, Fla.App.1963, 156 So. 2d 183. We find merit in the position taken by the Swartswelters. Initially, we recognize that the order of reversal which emanated from this court in the case contained in 224 So.Zd 371, supra,…
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Reynolds v. Wood, 563 So. 2d 212 (Fla. 3d DCA 1990)…rmed. Florida Real Estate Comm’n v. Harris, 134 So. 2d 785 (Fla. 1961), cert. denied, 371 U.S. 7, 83 S.Ct. 19, 9 L.Ed.2d 47 (1962); Cohen v. Cohen, 70 So. 2d 362, 363 (Fla.1954); Knabb v. Duner, 143 Fla. 92, 196 So. 456 (1940); McCutchen v. Hillman, 177 So. 2d 893 (Fla. 3d DCA 1965); Litt v. Jarson, 97 So. 2d 46 (Fla. 3d DCA 1957).…
Authorities Cited
- Fla. Real Est. Comm'n v. Harris, 134 So. 2d 785 (Fla. 1961)
- Hillman v. McCUTCHEN, 166 So. 2d 611 (Fla. 3d DCA 1964)