Noble v. McNeal

District Court of Appeal of Florida

Noble v. McNeal

179 So. 2d 126, 1965 Fla. App. LEXIS 3730

CourtDistrict Court of Appeal of Florida

DecidedOctober 14, 1965

DocketNo. G-350

StatusPublished

Cited by2 cases

This text of 179 So. 2d 126 (Noble v. McNeal) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Noble v. McNeal, 179 So. 2d 126, 1965 Fla. App. LEXIS 3730 (Fla. Ct. App. 1965).

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Opinion

JOHNSON, Judge.

This is on petition for writ of certiorari to review interlocutory order of Circuit Court, Duval County, Florida denying motion to strike from the answer of the defendants certain allegations of defense.

Respondents accepted delivery of a deed containing a mortgage assumption clause,, occupied the premises and made payments-on the assumed mortgage for approximately two years before defaulting in the payments. Plaintiff-appellee sued at law on the note. Respondents’ answer asserted,, inter alia, as defenses that defendants-respondents did not intend to become personally obligated to pay the mortgage, did not authorize anyone to type the assumption clause in the deed, that there was no-consideration for the assumption clause- and that said defendants had not read the-deed and did not know of “this state of affairs” until served with complaint im this cause. Petitioner-plaintiff filed motion to strike the portions of the answer-asserted as defenses, related supra, on the-ground the same did not constitute a defense. The court denied the motion and the matter appears before this court on petition for writ of certiorari to review the order of the circuit court denying the motion to strike.

Appeal from interlocutory order im a common-law action may be taken only where such order raises a question of’ venue or jurisdiction over the person.. Florida Appellate Rule 4.2, 31 F.S.A.

This court has repeatedly held! that certiorari would be granted only in; those cases in which it clearly appears-there exists no adequate remedy available-to petitioner by appeal after final judgment. To grant the writ sought would lead toward an unreasonable burden on this court and at the same time tend toward an unwarranted interference in trial procedures. The record in this case does not reveal that irreparable damage will be done to petitioner by denying the petition at this time as the same matter may be reviewed by this court, if desired, after final judgment and appeal therefrom. See State Road Department of Florida v. Bainbridge et al., Fla.App., 171 So.2d 609; Pullman Co. v. Fleishel et al., Fla.App., [128]*128101 So.2d 188, and Boucher v. Pure Oil Company, etc., Fla.App., 101 So.2d 408.

For the foregoing reasons, certiorari is denied.

WIGGINTON, Acting C. J., and STURGIS, J., concur.

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JOHNSON, Judge.

This is on petition for writ of certiorari to review interlocutory order of Circuit Court, Duval County, Florida denying motion to strike from the answer of the defendants certain allegations of defense.

Respondents accepted delivery of a deed containing a mortgage assumption clause,, occupied the premises and made payments-on the assumed mortgage for approximately two years before defaulting in the payments. Plaintiff-appellee sued at law on the note. Respondents’ answer asserted,, inter alia, as defenses that defendants-respondents did not intend to become personally obligated to pay the mortgage, did not authorize anyone to type the assumption clause in the deed, that there was no-consideration for the assumption clause- and that said defendants had not read the-deed and did not know of “this state of affairs” until served with complaint im this cause. Petitioner-plaintiff filed motion to strike the portions of the answer-asserted as defenses, related supra, on the-ground the same did not constitute a defense. The court denied the motion and the matter appears before this court on petition for writ of certiorari to review the order of the circuit court denying the motion to strike.

Appeal from interlocutory order im a common-law action may be taken only where such order raises a question of’ venue or jurisdiction over the person.. Florida Appellate Rule 4.2, 31 F.S.A.

This court has repeatedly held! that certiorari would be granted only in; those cases in which it clearly appears-there exists no adequate remedy available-to petitioner by appeal after final judgment. To grant the writ sought would lead toward an unreasonable burden on this court and at the same time tend toward an unwarranted interference in trial procedures. The record in this case does not reveal that irreparable damage will be done to petitioner by denying the petition at this time as the same matter may be reviewed by this court, if desired, after final judgment and appeal therefrom. See State Road Department of Florida v. Bainbridge et al., Fla.App., 171 So.2d 609; Pullman Co. v. Fleishel et al., Fla.App., [128]*128101 So.2d 188, and Boucher v. Pure Oil Company, etc., Fla.App., 101 So.2d 408.

For the foregoing reasons, certiorari is denied.

WIGGINTON, Acting C. J., and STURGIS, J., concur.

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