Judges: PER CURIAM.
Attorneys: Bradford C. Williams, Richard M. Naylor, Raymond D. Knight, Henry P. Adair, John M. McNatt and Knight, Adair, Cooper Osborne, for Appellant;
Ira C. Hopper, for Appellees.
Filed: Apr. 05, 1935
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 542 In this cause Mr. Chief Justice WHITFIELD and Mr. Justice DAVIS are of the opinion that the decree of the Circuit Court should be reversed for further appropriate proceedings while Mr. Justice ELLIS, Mr. Justice BROWN and Mr. Justice BUFORD are of the opinion that the decree should be affirmed. When the members of the Supreme Court, sitting six members in
Summary: [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 542 In this cause Mr. Chief Justice WHITFIELD and Mr. Justice DAVIS are of the opinion that the decree of the Circuit Court should be reversed for further appropriate proceedings while Mr. Justice ELLIS, Mr. Justice BROWN and Mr. Justice BUFORD are of the opinion that the decree should be affirmed. When the members of the Supreme Court, sitting six members in ..
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In addition to what has been said by Mr. Justice BROWN, in which I concur, I wish to say that I think this Court should either definitely adhere to the rule stated in McEwen, et ux., v. Schenck, 108 Fla. 119, 146 So. 839, or else overrule what was said in that opinion and adopt the rule which the present writer stated as his reason for dissenting in that case, that is that the testimony of the interested husband and wife alone should be held insufficient to overcome the certificate of acknowledgment supported by the sworn testimony of the officer making the same.
I am of the opinion that the sworn testimony of the officer that he did take the acknowledgment would add nothing to the proof of verity of the certificate. It is well settled that he could not be heard to impeach the certificate. Therefore, he could only be heard to testify one way and in that he only reaffirms what he has already said in the certificate.
This case was when before this Court on a former appearance (see 113 Fla. 678, 152 So. 671) reversed on authority of Menendez, et al., v. Rodriquez, 106 Fla. 214, 143 So. 223, and McEwen, et ux., v. Schenck, supra.
The chancellor in entering his decree after the mandate went down followed the law as enunciated in those cases, and as enunciated in the headnotes of those cases and unless we overrule what was said in those cases, there is no justification in reversing the decree of the chancellor entered in conformity therewith.
ELLIS, J., concurs.
ON REHEARING GRANTED
