CHARLES J. BODNER, APPELLANT,
v.
MARY LOUISE BLACKWELDER, APPELLEE
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Bodner appeals the circuit court's denial of his motion for relief from a foreclosure decree, arguing the decree was void because it included amounts outside those directed by a prior appellate mandate. The court affirmed, holding that even if the chancellor mistakenly included improper sums, the decree was not void and Bodner's failure to timely appeal prevented indirect review.
The foreclosure decree was not void. The circuit court properly denied the motion for relief under rule 1.38(b). Even if the chancellor mistakenly included improper sums, the decree would not be rendered void, though it might have been subject to correction on timely appellate review.
“The foreclosure decree entered after reversal was not void, and the chancellor correctly denied the motion attacking the decree.”
States the core holding that the decree was not void despite Bodner's contentions about improper inclusions.
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Join FLexlaw to unlock all legal intelligenceBodner owned property subject to a security deed securing a $20,000 loan advanced in 1956. After an earlier appeal, the court remanded for foreclosure…
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By this interlocutory appeal reversal is sought of an order of the circuit court denying a motion filed there by the appellant under rule 1.38(b), Fla.R.C.P., 30 F.S.A., for relief from a final decree of foreclosure.
The appellant Bodner is the owner of property involved in the foreclosure. On an earlier appeal (Blackwelder v. D’Ercole Enterprises, Inc., Fla.App.1963, 148 So.2d 721, 726) this court returned the cause to the circuit court with directions as follows: “ * * * for further proceedings to foreclose the security deed as a mortgage for such sum, without interest, as the chancellor may find remains outstanding and unpaid of the $20,000 which was advanced on November 13, 1956, for repayment of which the deed of December 20, 1956, was given as security, less any sums that the ap-pellee, Bodner, may have expended for taxes and assessments on the property involved during the period between March 12, 1958, the date of the dismissal of the appeal from the order of sale of the civil court of record, and June 2, 1959, the date of filing of the instant suit.”
Subsequent to remand the court entered a foreclosure decree for $15,694.52. An appeal filed thereto on behalf of Bodner was dismissed as untimely. Thereafter he moved for relief from the decree under rule 1.38(b), and now contends the decree was void, and for that reason it was error to deny the motion.
*374The foreclosure decree entered after reversal was not void, and the chancellor correctly denied the motion attacking' the decree. The basis for the appellant’s contention that the decree was void was that it included sums outside those directed to be determined in the mandate.
The chancellor had jurisdiction to proceed with the foreclosure, and had been expressly directed to do so. He entered the decree for foreclosure for an amount less than the maximum which could have been found by him to be due. If, as argued by the appellant, the chancellor mistakenly included improper sums, the decree was not thereby rendered void, although in such a circumstance it possibly would have been subject to correction on appellate review. No timely appeal having been taken, the alleged error may not now be indirectly reviewed on this appeal from the order denying the motion for relief under rule 1.38(b), which served to reaffirm the chancellor’s determination of the amount due.
Accordingly the order appealed from is affirmed.
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Bland v. Mitchell, 245 So. 2d 47 (Fla. 1970)…of Odum distinguishing appealability of the denial from the granting of a Rule 1.540 motion is no longer pertinent because of subsequent amendments to Fla.App.R. 4.2 and consolidation of law and equity actions. . See, e. g., Bodner v. Blackwelder, 181 So. 2d 373 (Fla.App., 1965), and Odum v. Morningstar, 158 So. 2d 776 (Fla.App., 1963).…
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Constant v. Tillitson, 214 So. 2d 91 (Fla. 1st DCA 1968)…, 191 So. 2d 80; In Re Brown’s Estate (Fla.App.1961), 134 So. 2d 290; In Re Lawrence’s Estate (Fla.1950), 45 So. 2d 344. .Rule 1.540, R.O.P., 31 F.S.A.; Lehman v. Spencer Ladd’s Inc. (Fla.1965), 182 So. 2d 402; Bodner v. Blackwelder (Fla.App.1965), 181 So. 2d 373.…
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Robinson v. City OF Tampa, 573 So. 2d 1024 (Fla. 2d DCA 1991)…llotted for such an appeal, we have no jurisdiction to consider the remaining issues. Fla.R.App.P. 9.110(b); Shields v. Flinn, 528 So. 2d 967 (Fla. 3d DCA 1988); see also Odum v. Morningstar, 158 So. 2d 776 (Fla. 2d DCA 1963); Bodner v. Blackwelder, 181 So. 2d 373 (Fla. 3d DCA 1965), cert. denied, 188 So. 2d 814 (Fla.1966). Affirmed. DANAHY, A.C.J., and PATTERSON, J., concur.…
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- Maronek v. Atlantis Hotel, Inc., 148 So. 2d 721 (Fla. 3d DCA 1963)