SOUTHERN NATIONAL BANK OF FORT WALTON BEACH, A BANKING CORPORATION, APPELLANT,
v.
H. R. YOUNG, APPELLEE
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Southern National Bank appealed the dissolution of a writ of attachment issued in aid of a mortgage foreclosure on an automobile. The court affirmed the dissolution, finding the bank failed to prove the factual basis for the attachment allegations and did not include the hearing testimony in the appellate record.
The court held that the bank correctly bore the burden of proving the allegations in its attachment affidavit, and the chancellor properly dissolved the attachment when the bank's testimony was insufficient to sustain those allegations as required by statute. The court could not review the chancellor's factual finding because the bank failed to include the hearing testimony in the appellate record.
“The affidavit recites that the affiant has reason to believe and does believe that the property encumbered by the mortgage and sought to be attached will be concealed or disposed of so that it will not be forthcoming to answer a decree upon foreclosure. No facts are averred in the affidavit which form the basis of affiant's belief.”
Establishes that the bank's attachment affidavit contained conclusory allegations without factual support, which was a key deficiency.
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Join FLexlaw to unlock all legal intelligenceSouthern National Bank filed a foreclosure suit against H.R. Young regarding a mortgaged automobile. The bank obtained a writ of attachment based on a…
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Plaintiff has appealed from an order dissolving a writ of attachment issued in aid of a suit to foreclose a mortgage on an automobile owned by defendant. It is contended that the chancellor abused his discretion in dissolving the attachment, and that he applied to the evidence an incorrect rule of law.
In aid of its foreclosure suit plaintiff filed an affidavit as a predicate for the writ of attachment. The affidavit recites that the affiant has reason to believe and does believe that the property encumbered by the mortgage and sought to be attached will be concealed or disposed of so that it will not be forthcoming to answer a decree upon foreclosure. No facts are averred in the affidavit which form the basis of affiant’s belief.
After the automobile had been attached under the writ and delivered to plaintiff defendant filed in the cause his affidavit in *789which he denied the existence of any cause for belief that he would dispose of or conceal the automobile in question, or that it would not be forthcoming- to answer the decree upon foreclosure. In addition, defendant averred that there is no basis for believing that he will conceal or dispose of the property in question.
Upon the traverse made by defendant’s affidavit, the cause was set for hearing on defendant’s motion to dissolve the attachment. At the conclusion of the hearing the chancellor entered the order appealed m which he found that the testimony of plaintiff was not sufficient as a matter of law to sustain the allegations of its affidavit in attachment. The writ of attachment was thereupon dissolved and it was ordered that the property be returned to defendant.
Appellant first contends that the court erred in placing on it the burden of establishing the grounds of the affidavit which it filed as a basis for the writ of attachment. The pertinent statute provides that upon the hearing of a motion to dissolve an attachment, if the allegations in the plaintiff’s affidavit which are denied are not sustained and proved to be true, the attachment shall be dissolved.1 The chancellor did not err in requiring plaintiff to adduce proof sufficient to sustain the aver-ments of its affidavit. Upon finding that the proof submitted by plaintiff was insufficient for this purpose, the chancellor was justified in dissolving the attachment, as such disposition is required by the statute.
Appellant further contends that the chancellor abused his discretion in finding from the evidence that plaintiff had failed to carry the burden of establishing the truth of the averments contained in its affidavit of attachment. Appellant has not included in the record on appeal the testimony adduced before the chancellor at the hearing on defendant’s motion to dissolve the writ. It is fundamental that an order or decree comes to the appellate court clothed with a presumption of correctness, and before reversal of an order or decree may be had, the burden rests on appellant to clearly demonstrate error. There is no way by which this court may determine whether the chancellor’s finding with respect to the failure of plaintiff to prove the averments of its affidavit is supported by the evidence in view of the fact that the evidence has not been brought to us for our review.2
The order appealed is accordingly affirmed.
CARROLL, DONALD K., C. J., and WIGGINTON and RAWLS, JJ., concur.
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Bell Williams v. Williams, 172 So. 2d 488 (Fla. 1st DCA 1965)…ALD K„ J., and FITZPATRICK, W. L., Associate Judg’e, concur. . Lee County Oil Co. v. Marshall, (Fla.App.1957) 98 So. 2d 510. . Vaughn v. Smith et al., (Fla.1957) 96 So. 2d 143. . Southern National Bank of Fort Walton Beach v. Young (Fla.App.1962) 142 So. 2d 788; Meadows Southern Construction Co. v. Pezzaniti, (Fla.App.1959) 108 So. 2d 499.…
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The City OF S. BAY v. Armstrong, 188 So. 2d 21 (Fla. 4th DCA 1966)…th a presumption of correctness, and before -there will be a reversal the appellant must present facts to clearly demonstrate error. Canning v. Norton, Fla.App.1963, 155 So. 2d 737; Southern National Bank of Fort Walton Beach v. Young, Fla.App.1962, 142 So. 2d 788. The duty is upon the appellant to bring to the appellate court the proper record of facts upon which the errors assigned are based. Best v. Barnette, Fla.App.1961, 130 So. 2d 90. Jurisdictional defects resulting from defects in process or service…
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Smith v. Lyst, 212 So. 2d 921 (Fla. 3d DCA 1968)…court no substantial competent evidence upon which the decree could be founded, the decision of the chancellor will not be reversed. Alvarez v. Dumont, Fla.App.1965, 178 So. 2d 352; Southern National Bank of Fort Walton Beach v. Young, Fla.App.1962, 142 So. 2d 788. From an examination of the record on appeal, we conclude that there was sufficient competent evidence before the chancellor upon which he could have based his decision. See: In Re Adoption of Layton, Fla.App.1967, 196 So. 2d 784. Therefore, the dec…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Athas S. Curtis v. Simon, 138 So. 2d 96 (Fla. 3d DCA 1962)