Farrar, Et Ux v. Gutierrez

161 So. 394, 119 Fla. 306

• Court: Supreme Court of Florida
• Decided: May 11, 1935
• Status: Published

Opinions

Per Curiam.

We here review a decree awarding a deficiency judgment in a mortgage case.

The two questions presented by appellants in the brief are stated as follows:

“First Question. Where the bill of complaint in a mortgage foreclosure contained no special prayer for a deficiency judgment, nor a prayer for general relief, and there was no special application made after Master’s sale for a deficiency judgment, did the court have authority under such circumstances to enter a deficiency decree against the defendants ?

• “Second Question. Under the facts disclosed by the record in this case, did the Chancellor abuse .his discretion in entering a deficiency decree against the defendants?”

The first question must be eliminated because in the decree appealed from the Chancellor Says’:

“This cause having been set for this day to be heard upon the Master’s Report of sale and the complainant’s motion for confirmation and for deficiency decree, and the parties being present by their respective solicitors, and evidence having been introduced,” etc.

There being no showing in the record to the contrary, the certificate of the Chancellor to the effect that hearing was on complainant’s motion * * * for deficiency decree must be taken as a verity.

As it is not made clearly to appear that the Chancellor abused judicial discretion in entering the deficiency decree for the balance of the adjudicated debt, we must affirm the decree.

It is so ordered.

Affirmed.

Ellis, P. J., and Terrell, and Buford, J. J., concur. Whitfield, C. J., concurs in the opinion and judgment. Davis, J., concurs specially.