Summary
In Garner v. Slack, 112 Fla. 553, 150 So. 750, the motion for a deficiency decree was not challenged; there was as here a prayer for general relief. See Coe-Mortimer Co. v. Dusendschon, 113 Fla. 818, 152 So. 729; Atlantic Shores Corp. v. Zetterlund, 103 Fla. 761, 138 So. 50.
Summary of this case from Cooper v. KnightOpinion
Opinion Filed October 31, 1933.
An appeal from the Circuit Court for Seminole County, W. W. Wright, Judge.
E. F. Householder, for Appellants;
Dickinson Dickinson, for Appellee.
This is a companion case to the case of Garner v. Slack decided at the present term. The only difference between this case and the other case just referred to, is that this is an appeal from a deficiency judgment rendered in a foreclosure case, wherein the bill of complaint did not contain a special prayer for a deficiency judgment, but did contain a prayer for appropriate general relief. Letchworth v. Koon, 99 Fla. 451, 127 Sou. Rep. 321, decided after the decree in this case was entered, is relied on for reversal of the deficiency decree herein appealed from.
While the better practice is to incorporate in the bill of complaint a special prayer for a deficiency judgment, if one is desired, yet it has been held that if by subsequent appropriate motion, or other pleading, a deficiency judgment is asked for and granted, after an opportunity to contest the right of complainant to a deficiency decree has been afforded to the defendant, a deficiency decree rendered on a bill of complaint containing a prayer for general relief in addition to the prayer for foreclosure, will not be reversed as erroneous. See Garner v. Slack, 102 Fla. 635, 136 Sou. Rep. 444.
In this case there was filed in the cause a motion for confirmation of the foreclosure sale, and for deficiency judgment. No attack on the complainant's motion for a deficiency judgment appears to have been interposed by defendant as he might have done had he wished to press any objection to the procedure adopted. Harmful error of procedure has not been made to appear as ground for reversal, therefore the decree appealed from should be affirmed.
Affirmed.
DAVIS, C. J., and WHITFIELD, ELLIS, TERRELL, BROWN and BUFORD, J. J., concur.