S. W. COZART, ET UX.,
v.
R. B. FULLER, J. L. ROBINSON AND T. J. TURNER, AS TRUSTEES
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The Florida Supreme Court affirmed a mortgage foreclosure decree, holding that a procedural issue raised for the first time on appeal, concerning a motion to strike an answer, was not properly before the court.
No, because the procedural issue was not raised or ruled upon in the lower court, it is not properly before the appellate court for review.
“The record has been examined and the error complained of is one of procedure that was not attacked in the lower court and on which that court did not have á chance to rule.”
This quote establishes the primary reason for the court's decision: the procedural issue was not preserved for appeal.
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Join FLexlaw to unlock all legal intelligenceThe plaintiffs filed an amended bill in a mortgage foreclosure case, to which the defendants filed an answer. Three months after the cause was at issu…
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This appeal is from a final decree in a mortgage foreclosure. To reverse said final decree, appellant relies on one question, viz.: May the plaintiff, three months subsequent to the time the cause is at issue on bill and answer, ignore Section 38 of the 1931 Chancery Act and file a motion to strike portions of and to dismiss defendant’s answer?
The record has been examined and the error complained of is one of procedure that was not attacked in the lower court and on which that court did not have á chance to rule. For that reason, it is not properly here but if it were the record reveals that plaintiffs filed their amended bill on February' 21, 1938; that on March 7 following, they filed their answer to the amended bill and on March 15, plaintiffs filed their motion to strike parts of the answer of defendants. When these facts are considered, there is no basis for the question relied on.
The appeal is therefore without merit so the decree appealed. from is affirmed.
Affirmed.
Terrell, C. J., and Buford and Thomas, J. J., concur.
*495Chapman, J., concurs in opinion and judgment.
Justices Whitfield and Brown not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.