Hay v. Isetts

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 1028 Frank W. Isetts, and his wife, Emilie I. Isetts, joined by her husband, Frank W. Isetts, for the purpose of the suit, instituted proceedings against D. Krokover and his wife, Paulina Krokover (also known as Pauline Krokover) joined by her husband, D. Krokover, for the purpose of the suit, Mary G. Hay joined by her husband, William R. Hay, *Page 1029 for the purpose of the suit, William R. Hay, Percy C. Pachtman, Florence Goldsmith joined by her husband, __________ Goldsmith, and Mary G. Hay, Inc., for the foreclosure of a real estate mortgage. The bill of complaint shows the execution and delivery by D. Krokover, Mary G. Hay and William H. Hay of three promissory notes payable to the order of Frank W. Isetts and his wife, Emilie L. Isetts, on or before one, two and three years after date respectively, in the aggregate sum of $20,000, with interest payable semi-annually at the rate of eight per cent. per annum until paid; that to secure the payment of said promissory notes, D. Krokover and his wife, Pauline Krokover, by D. Krokover, her attorney-in-fact, and Mary G. Hay, joined by her husband, William R. Hay, executed and delivered to the complainants a mortgage deed covering the property set out in the bill of complaint; that because of the failure of the makers of the notes for more than thirty days to pay the interest after it became due and payable complainants exercised their option to declare the whole sum due and payable; that said mortgage is a prior lien and superior to all other claims on the property; that fee simple title to an undivided one-half interest in the land at the time of the filing of the bill of complaint was in Florence Goldsmith by virtue of a deed from D. Krokover and his wife, and that the fee simple title to the other undivided one-half interest in said land at the time of the filing of the bill of complaint was in the defendant Mary G. Hay, Inc., by virtue of a deed from Mary G. Hay and her husband, William R. Hay; that on the 13th day of November, 1925, prior to the execution and delivery of the deed to the said Florence Goldsmith, the said D. Krokover mortgaged his undivided one-half interest in the said premises to Percy C. Pachtman. *Page 1030 The complainants prayed, among other things, that the defendants be decreed to pay to complainants whatever sum might appear to be due them and that they might have a deficiency decree against D. Krokover and William R. Hay. Upon final hearing the court decreed that D. Krokover, Mary G. Hay and William R. Hay pay to the complainants the sum found to be due them; that all of the defendants be forever barred and foreclosed of and from all equity of redemption in and to the said property and that in the event the said premises failed to sell for sufficient to pay the costs and the amounts by the decree ordered to be paid that the special master appointed to make the sale report such shortage to the court and such further order be made upon such report as to the court may seem proper. From this decree the following appeal was taken and entered: "Frank W. Isetts, and wife, Emiline L. Isetts, joined by her husband, Frank W. Isetts, for the purpose of this suit, Complainants, vs. NOTICE OF D. Krokover, and his wife, Pauline Krokover (also known as Pauline Krokover), joined APPEAL by her husband, D. Krokover, for the purpose of this suit; and Mary G. Hay, joined by her husband, William R. Hay, for the purpose of this suit; William R. Hay, Percy C. Pachtman, Florence NO. 705, Ch. Goldsmith, joined by her husband, __________ Goldsmith, for the purpose of this suit, and Mary G. Hay, Inc., a corporation organized and existing under and by virtue of the Laws of the State of Florida, Defendants. *Page 1031 "Comes now Mary G. Hay, joined by her husband, William Hay, for the purpose of this suit; William R. Hay, and Mary G. Hay, Inc., a corporation organized and existing under and by virtue of the laws of the State of Florida, defendants in the foregoing cause and hereby take and enter this their appeal from the final decree of the judge of the above court, dated the 6th day of August, A.D. 1928, said appeal being returnable to the Supreme Court of the State of Florida, at Tallahassee, on the 23rd day of November, A.D. 1928, a day more than thirty (30) and less than ninety (90) from the date of said appeal, and the clerk of this court will please forthwith enter this notice of appeal in the chancery order book as required by law." At the very outset we find it necessary to determine whether or not the appeal in this case is in such shape that we can consider it. The caption of the appeal is the same as the caption of the pleadings in the cause in the lower court. The appeal is taken only by Hay and his wife, two of the joint makers of the notes, and by the grantee of one of the mortgagors. In the entry of appeal no one is directed to take notice of the appeal, nor has any attempt been made to designate the several parties to the cause as appellants or appellees except to state that Mary G. Hay, joined by her husband, William R. Hay, William R. Hay and Mary G. Hay, Inc., were taking the appeal. The entry of appeal was sufficient to transfer the cause to this Court and when it was duly recorded as required by the statute it brought the complainants in the court below — the appellees — into this Court, but it did not bring here any of the defendants other than those taking the appeal since the body of the appeal limits the appellants to *Page 1032 the three expressly mentioned though the other defendants are named in the caption as defendants in the court below. Wilson-Mason Co. v. Duncan, 90 Fla. 112, 105 So. R. 123; Henry Vogt Mach. Co. v. Milton Land Inv. Co., 74 Fla. 116, 76 So. R. 695. None of the defendants except those who have appealed have appeared in this Court. A party who would be directly affected by an appeal is a necessary party to the appeal. Armour Fertl. Wks. v. Wade Inv. Co., 90 Fla. 403, text 406, 105 So. R. 819; 3 C. J. 1014. The defendants Mary G. Hay, her husband William R. Hay, and Mary G. Hay, Inc., had the right to take an appeal for and in the name of themselves and their co-defendants without the consent of such co-defendants. Guaranty T. T. Co. v. Thompson, 89 Fla. 35, 103 So. R. 110; 3 C. J. 1014. "Where a chancery decree or a severable portion thereof is in favor of the complainant and of one or more of the defendants and against one or more of the other defendants who appeal and assign such decree as error as in this case, the defendants in whose favor the decree is rendered should be brought here by making them parties appellant and if necessary with the service of a summons as for severance, or equivalent proceeding. This gives to the appellate court jurisdiction of the parties against whom relief is sought, and it being an equity cause the court may make proper decrees binding on all parties before it. In such case the complainant below is made appellee and is brought here by a proper record of an appropriate entry of appeal; and the defendants in whose favor the decree is rendered against the appealing defendants, are brought in by making them appellants in the entry of appeal; and *Page 1033 if they refuse to join in the appeal, the complaining defendant may have service of summons to appear made upon such defendants, which gives the appellate court jurisdiction to make proper orders and decrees in the progress and disposition of the appeal." Guaranty T. T. Co. v. Thompson, supra; Vogt Mach. Co. v. Milton Land Inv. Co., supra, text 121. "Where an appeal or Writ of Error is taken and all the parties who are directly affected by the judgment, decree or order appealed from, are not duly made parties in the appeal or Writ of Error, the Court will decline to proceed because the parties who should be but are not brought into Court in the case will not be bound by the appellate judgment, decree or order, and the Court will not dispose of the matter by piecemeal. But when by appeal or Writ of Error taken in due time by some of the parties who may appeal and the Court has jurisdiction of the cause of action, it may permit the absent parties to appear and participate in the appellate proceedings, in which case they will be bound by the judgment rendered. On having jurisdiction of the cause, the Appellate Court may grant a summons and severance as to parties appellant who decline to come in, in which event the parties who do appeal may proceed without the others, all being bound by the judgment. "An appeal from a joint judgment taken by less than all of the parties against whom the joint judgment is rendered will be dismissed unless the appeal taken is sufficient to transfer the cause to the Appellate Court and all the other joint defendants appear in the Appellate Court and join in the appeal or unless the parties taking the appeal have summons and severance or equivalent proceedings in order to *Page 1034 eliminate the parties who could have joined but did not join in taking the appeal so as to permit those who take the appeal to prosecute the same without the other parties, such other parties as well as those taking the appeal being then bound by the determination of the appeal. "Under the statutes requiring Writs of Error and appeal taken to the Supreme Court in civil actions and suits, to be recorded in record books of the trial court, as a means of giving the Supreme Court jurisdiction of the person of the appellees or defendants in error, it is necessary that the appeal or Writ of Error that is recorded shall properly include all of the appellees or defendants in error and if this is not done, the Writ of Error or appeal will be dismissed unless all those not duly made appellees or defendants in error appear in the cause." McJunkins v. Stevens, 88 Fla. 559, text 570, 102 So. R. 756. Mortgagors who have conveyed all their interests in the mortgaged premises are neither necessary nor proper parties to a foreclosure suit unless a personal judgment for any deficiency may be sought against them. Bate v. Cook, 89 Fla. 40,103 So. R. 126; Hinson v. Gammon, 61 Fla. 641, 54 So. R. 374; Phifer v. Abbott, 73 Fla. 402, 74 So. R. 488. In the instant case the mortgagors were made parties to the foreclosure proceedings, a decree was entered against them, and in the prayer of the bill of complaint a deficiency decree is sought against the defendant D. Krokover and William R. Hay, or either of them. Krokover, therefore, was a necessary party to the appeal. Bate v. Cook, supra. The defendant Florence Goldsmith, the owner of the fee of an undivided one-half interest in the mortgaged premises, and her husband were necessary parties to the *Page 1035 appeal. The decree barred and foreclosed the defendant Percy C. Pachtman, to whom the defendant D. Krokover mortgaged his undivided one-half interest in the property, which was tantamount to subordinating his lien to the lien of the complainant and he therefore had such a pecuniary interest in the decree appealed from that he was a necessary party to the appeal. Smith v. Fidelity Trust Co., 96 Fla. 168, 117 So. R. 791. All parties who were interested in the decree and against whom it was entered should be made parties to the appeal therefrom and when one of them is omitted from the appeal and fails to appear the appeal will be dismissed. Bate v. Cook,supra, text 44; Sherlock v. Couper, 43 Fla. 51, 29 So. R. 444; Bridges Co. v. Carlton, 56 Fla. 843, 48 So. R. 46; Ferris v. Ferris, 43 Fla. 358, 31 So. R. 345; Buck v. All Parties,86 Fla. 86, 97 So. R. 313. When an appeal has been taken and parties who have a vital and pecuniary interest in the decree appealed from are not made parties to the appeal this court is without jurisdiction of such parties and cannot determine their rights as affected by the final decree and the provisions of Sections 4636 and 4637 Comp. Gen. Laws of Florida will not be held to alter the conclusions stated in this opinion. Smith v. Fidelity Trust Co., supra. In as much as the defendants taking the appeal did not enter an appeal for themselves and their co-defendants who are necessary parties to the appeal, and such co-defendants have not voluntarily submitted themselves to the jurisdiction of this Court, and the time for taking an appeal has expired and they cannot now be made parties appellant, it follows that the appeal must be dismissed.