N. H. GARNER, PLAINTIFF IN ERROR,
v.
GEORGE E. SLACK, AND J. F. MCCLELLAND, SHERIFF OF SEMINOLE COUNTY, FLORIDA, DEFENDANTS IN ERROR
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.
Plaintiff in Error appeals a judgment denying his motion to stay execution on a deficiency decree in a foreclosure suit. The Florida Supreme Court upholds the deficiency decree as valid despite the original complaint's failure to specifically pray for such relief, finding that a prayer for general relief was sufficient and that the lower court had proper jurisdiction.
The deficiency decree is valid because it was properly rendered under the prayer for general relief in the complaint. A deficiency decree may be issued by circuit courts having jurisdiction over the parties and subject matter under proper pleadings and proof. The judgment denying the motion to stay execution is affirmed.
“If the court has acquired jurisdiction of the subject-matter and of the parties, the judgment or decree entered is binding, even though erroneous, because of irregularity of procedure; and such judgment or decree will not be set aside, reversed or modified, except by appropriate direct appellate procedure.”
Establishes the principle that jurisdictional defects cannot be collaterally attacked and that irregularities in procedure do not void a judgment when jurisdiction exists
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 foreclosure suit, a deficiency decree and confirmation of sale were entered on July 7, 1930. Execution issued on August 20, 1930, and was levied …
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 Foreclosure Suit cases and more on FLexlaw
— -In this case deficiency decree was entered, together with confirmation of sale, on the 7th day of July, 1930, in a foreclosure suit.
Execution issued on the deficiency decree on the 20th •day of August, 1930. Execution was levied on certain lands described in the return of the Sheriff, which return was filed on October 6th, 1930. On the same date, October 6, 1930, the plaintiff herein, defendant in the foreclosure suit, filed his motion under the provisions of section 2829 G. S., 4516 C. G. L., prayiñg order of the court to direct a stay' of execution and the suspension of proceedings thereof.
On final hearing judgment was entered in favor of the defendants and ágainst the plaintiff in the court below, plaintiff in error here.
It is contended that the deficiency decree is void because the bill of complaint did not pray specifically for a deficiency decree. But there was a prayer for general relief and a deficiency decree could be rendered thereunder. Bate, et al. vs. Cook, et al., 89 Fla. 40, 103 Sou. 126. There is no contention that the court in which the foreclosure suit was tried and in which the decree for deficiency was rendered did not have jurisdiction of the parties and of the subject matter.
It is too well settled to be discussed that circuit courts in this State having jurisdiction of the parties and of the subject matter may enter, under proper pleadings and *637proof, deficiency decrees. The question as to whether or not either pleadings or proof will support a deficiency decree is not jurisdictional but is a question which may be presented to an appellate court in proper proceedings for review.
In Malone vs. Meres, 91 Fla. 709, 109 Sou. 677, this Court held:
“If the court has acquired jurisdiction of the subject-matter and of the parties, the judgment or decree entered is binding, even though erroneous, because of irregularity of procedure; and such judgment or decree will not be set aside, reversed or modified, except by appropriate direct appellate procedure.”
For the reason stated, the judgment Should be affirmed and it is so ordered.
Affirmed.
Whitfield, Ellis, Terrell and Davis, J.J., concur.
Brown, J., concurs specially.
— It appears from the order granting -the deficiency decree, in connection with the confirmation of the Master’s report of sale, that the deficiency decree was granted on motion, after notice to the defendants. As the attack here made on the deficiency decree is in the nature of a collateral attack. I concur in the affirmance. However, if the question had been presented on direct appeal, I am inclined to- think I might have taken a different view, by reason of the principles laid down in Letchworth vs. Koonce, 99 Fla. 451, 127 So. 321, and the cases therein cited.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Belle Mead Dev. Corp. v. Reed, 114 Fla. 300 (Fla. 1934)…South. Rep. 655; Woodward v. Dishong, 102 Fla. 347, 135 South. Rep. 804; Cragin v. Ocean & Lake Realty Co., 101 Fla. 1337, 135 South. Rep. 795; Taylor v. Prine, 101 Fla. 967, 132 South. Rep. 464, for discussion upon the subject. In Garner v. Slack, 102 Fla. 635, 136 South. Rep. 444, it was held that a chancery court may enter a deficiency decree under a prayer for general relief; so, also, in Snell v. Richardson, 67 Fla. 386, 65 South. Rep. 592, and a prayer for a deficiency therefore is not necessary to i…
-
Cole v. Heidt, 117 Fla. 756 (Fla. 1934)…there is merit in this' contention. After the entry of decree pro confesso it was proper for the court to proceed without further notice to, or participation by, this defendant. Section 42, 1931, Chancery Practice Act. In Garner v. Slack, et al., 102 Fla. 635, 136 Sou. 444, we held: “A deficiency decree may be entered under a prayer for general relief although the Bill of Complaint does not present a prayer definitely asking the rendition of such decree.” That opinion was filed July 29, 1931. The 1931…
-
Coe-Mortimer Co. v. Dusendschon, 113 Fla. 818 (Fla. 1934)…o the facts in the case, as this Court said speaking through Mr. Chief Justice Strum in Taylor v. Prine, 101 Fla. 967, 132 South. Rep. 464. While a chancery court may enter a deficiency decree under a prayer for general relief, see Garner v. Slack, 102 Fla. 635, 136 South. Rep. 444, it does not follow that the Chancellor is bound to consider the question whether such [*822] a decree shall be entered, and\it is .exceedingly doubtful if he has the power to consider the question under the prayer for general r…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Malone v. Meres, 109 So. 677 (Fla. 1926)
- Parker v. Gates, 89 Fla. 76 (Fla. 1925)
- Henry v. Bate and Wife, 89 Fla. 40 (Fla. 1925)
- Letchworth v. Koon, 99 Fla. 451 (Fla. 1930)