Jonton, Inc. v. Fidelity Mortgage Investors

329 So. 2d 45, 1976 Fla. App. LEXIS 14019

Opinion

SMITH, Judge.

This plenary appeal was taken from an order denying the judgment debt- or’s motion to set aside a sale carried out by the clerk pursuant to a final judgment of foreclosure. While we do not have jurisdiction of a plenary appeal from an order not final, we may and do entertain the case as an interlocutory appeal. Rules 3.2 and 4.2, F.A.R.; Rosen v. Hunter, 224 So.2d 371 (Fla.App. 3rd, 1969); Crepaldi v. Wagner, 128 So.2d 759 (Fla.App. 1st, 1961).

Appellant attacks the sale, admittedly conducted during hours prescribed by the court, because the clerk failed to delay until the imminent arrival of a prospective bidder arranged for by appellant. The judgment creditor successfully bid an amount less than the amount of the judgment. There is no evidence the clerk agreed to delay the sale or of any other circumstances invalidating the sale. We need not and do not anticipate the merits of any prospective application by appellee for a deficiency judgment, nor of appellant’s potential defenses.

AFFIRMED.

BOYER, C. J., and COX, JOHN S., Associate Judge, concur.