Harper v. Green

128 So. 827, 99 Fla. 1309

• Court: Supreme Court of Florida
• Decided: June 6, 1930
• Status: Published

Opinion

Bupord, J.

In this case the appellants filed bill of complaint to foreclose mortgage. Upon final hearing the chancellor dismissed the-bill without prejudice.

The bill was dismissed because the complainants failed to introduce in evidence the original note to secure the payment of which the mortgage was given. It may be inferred from the evidence that the note was lost. In fact, the witness testified that the note and mortgage were in a desk on his front porch when the hurricane of 1926 tore up his desk and blew away his papers.

The bill of complaint did not contain apt allegations, nor a prayer upon which to base an order re-establishing the lost papers.

There was no evidence in the record to show that any proceedings had been had re-establishing the lost papers.

Under this state of facts, the chancellor entered the proper order in dismissing the bill of complaint without prejudice, the effect of which was to give the complainants the opportunity of re-establishing their lost papers and then proceeding in a legal and orderly manner to foreclose the same.

The decree of the chancellor should be affirmed and it is so ordered.

Affirmed.

Whitfield, P. J., and Strum, J., concur. Terrell, C. J., and Ellis, J., concur in the opinion and judgment. Brown, J., disqualified.