Judges: DAVIS, J. —
Attorneys: Ward Marshall of Miami, for Appellant
Semple Hirschman and Stapp, Gourley, Vining Ward, of Miami, for Appellees.
Filed: Jun. 29, 1931
Latest Update: Mar. 02, 2020
Summary: [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 240 This is an appeal from an order of the Circuit Court of Dade County sustaining a demurrer to and dismissing a bill of complaint brought to foreclose a mortgage. The complainant claimed the right to foreclose its mortgage and to accelerate all payments provided under the mortgage and the notes secured thereby because of the non-payment of certain taxes by
Summary: [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 240 This is an appeal from an order of the Circuit Court of Dade County sustaining a demurrer to and dismissing a bill of complaint brought to foreclose a mortgage. The complainant claimed the right to foreclose its mortgage and to accelerate all payments provided under the mortgage and the notes secured thereby because of the non-payment of certain taxes by t..
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In its opinion already filed this Court recognizes the rule that the filing of a bill alleging that complainant exercises his option to declare the whole mortgage debt due is ordinarily sufficient to show exercise of the option and sustain the bill, which is the effect of the holdings in Prince v. Mahin, 73 Fla. 525, 74 So. 696; Kreiss Potassium Phosphate Co. v. Knight,98 Fla. 1004, 124 So. 751; Meredith v. Long, 96 Fla. 719,119 So. 114. These cases were not overlooked nor were they disregarded or overruled. The holding in this case was that the allegations of the bill here considered failed to measure up to the definite requirements of these cases, and that therefore the bill on its face was prematurely brought and consequently the demurrers were properly sustained and the bill dismissed.
No application to amend appears to have been made in the Court below. We cannot reverse the Chancellor for failing to allow an amendment which was never requested or demanded.
Rehearing denied.
WHITFIELD, P.J., AND TERRELL, J., concur.
BUFORD, C.J., AND ELLIS AND BROWN, J.J., concur in the opinion and judgment.
