R. M. SECREST, ET UX., ET AL.,
v.
R. I. W. WATERPROOFING & DECORATING CO., INC., 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.
In this mortgage foreclosure case, the Florida Supreme Court reversed an order appointing a receiver that was granted without notice to the defendants. The court held that even though a decree pro confesso had been entered against the defendants, they were entitled to notice and a hearing before a receiver could be appointed because the receiver was not requested in the original complaint.
The court held that the decree pro confesso did not operate against the defendants on the question of the right to appoint a receiver because the appointment of a receiver was not contemplated in the original bill of complaint. Therefore, the defendants were entitled to notice and an opportunity to be heard before a receiver could be appointed, and the allegations in the petition were insufficient to warrant appointment without notice.
“There having been no prayer for Receiver in the bill of complaint the petition for the appointment of a Receiver contemplated the issuing of process which was not contemplated by the original bill of complaint. Therefore, decree pro confesso did not operate against the opposing parties upon the question of the right to appointment of Receiver.”
Establishes the key holding that a decree pro confesso on an unverified bill does not extend to matters not raised in the original complaint
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIn a mortgage foreclosure action, a decree pro confesso was entered against R. M. Secrest and Virginia L. Secrest on an unverified bill of complaint t…
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 Decree Pro Confesso cases and more on FLexlaw
The appeal is from an order appointing a Receiver in a mortgage foreclosure case. There was no prayer in the bill of complaint for the appointment of a Receiver.
After decree pro confesso had been entered against the appellant and others, application was made without notice for the appointment of Receiver. On application of R. I. W. AVaterproofing & Decorating Co., Inc., verified under oath, Receiver was appointed.
The pertinent allegation of the petition was:
“That the property is in possession of the plaintiff and one parcel of the property is in possession of R. M. Secrest and Virginia L. Secrest, his wife, against whom a Decree Pro Confesso has been entered in this cause; that the property in possession of the said R. M. Secrest and Virginia L. Secrest, his wife, is the only improved property involved in this suit and the rents and profits from said property amounts to approximately One Hundred ($100.00) Dollars per month, and more in the AVinter Season; that a receiver is necessary to protect the property and interest of the defendants in the rents and profits therefrom; that the hurricane season is at hand and the property should be properly covered by insurance and protected against loss by the elements and fire.”
Section 73 of the Chancery Practice Act of 1931 provides as follows:
“In all cases of application for injunction, the judge to whom presented, before granting the same, shall be satisfied that sufficient notice of the application has been given to the party sought to be enjoined and of the time and place when the motion is to be made, and no order for such injunction shall be granted without such notice, unless it is manifest to such judge, from the sworn allegations in the *599bill or the-affidavit of the complainant or other competent person, that the injury apprehended will be done if an immediate remedy is not afforded, when he may grant instanter an order restraining the party complained of until the hearing or the further order of the court, which restraining order shall have all the force of an injunction until rescinded or modified by the Court.”
Section 74 of that Act provides:
“The provisions of the foregoing section as to notice shall apply to applications for the appointment of receiver or other extraordinary remedy in equity to the extent that may be applicable.”
There having been no prayer for Receiver in. the bill of complaint the petition for the appointment of a Receiver contemplated the issuing of process which was not contemplated by the original bill of complaint. Therefore, decree pro confesso did not operate against the opposing parties upon the question of the right to appointment of Receiver.
Under the statute the parties in possession of the property against whom the decree pro confesso had been taken on an unverified bill of complaint and in which the appointment of Receiver was not suggested were entitled to notice and entitled to be heard on the question of. appointment of a Receiver. The allegations of the petition were entirely insufficient to warrant the appointment of a Receiver without notice.
The order appealed from should, therefore, be reversed.
It is' so ordered.
Reversed.
Whitfield, Terrell, Brown and Davis, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
R. W. Holding Corp. v. R. I. W. Waterproofing & Decorating Co., Inc., 131 Fla. 424 (Fla. 1938)…r. The order appointing the receiver was reversed by this Court because the owners of the property were not given notice of the hearing on the petition asking for appointment of the receiver. R. M. Secrest v. R. I. W. Waterproofing & Decorating Co., 127 Fla. 597, 173 So. 436. On re-reference neither side took any further testimony, and the Special Master found that there was due plaintiff, without allowing any credits for the amount brought by the first foreclosure sale, $1,031.41 principal; $377.05 intere…