Opinion
No. 59-748.
January 21, 1960.
Ernest E. Roberts, Miami, for petitioner.
Stephen F. Bazzano, Miami, for respondent.
By an original proceeding in prohibition in this court the petitioner sought a writ to preclude the civil court of record in Dade County from proceeding in an action for replevin of an automobile at the instance of a mortgagee, under a chattel mortgage which provided that upon a default the mortgagee could accelerate the balance due, take possession of the chattel and resell it at public or private sale, as an alternative to foreclosure.
After hearing argument and considering the briefs, the rule nisi in prohibition is discharged, and judgment is entered for the respondent. See Cary Co. v. Hyer, 91 Fla. 322, 107 So. 684; Intertype Corporation v. Pulver, 101 Fla. 1176, 1180, 132 So. 830, 135 So. 793; Intertype Corporation v. Pulver, 5 Cir., 1933, 65 F.2d 419; Crandall, Florida Common Law Practice, § 362 (1940 Supp.)
PEARSON and CARROLL, CHAS., JJ., concur.
HORTON, C.J., dissents.
I respectfully dissent from the per curiam judgment and opinion. I conclude that the decision in this case should be governed by the rule announced in Snow v. Nowlin, 125 Fla. 166, 169 So. 598. In the Snow case, the Supreme Court, in my opinion, unequivocably held that a mortgagee in a chattel mortgage acquired no legal right to take possession of mortgaged property without the consent of the mortgagor, and if possession was refused by the mortgagor, the mortgagee must resort to foreclosure to acquire possession of the property.
The court further stated that a stipulation in a mortgage that upon default the mortgagee could take possession of the property and sell the same conferred no greater right than the mortgagee would have had without that stipulation being in the mortgage.
Accordingly, I would render judgment in favor of the petitioner and make the rule absolute.