This case was before this Court in the style of McEwen v. Schenck, 108 Fla. 119, 146 So. 839.
The record shows that the opinion and judgment of this Court was filed on January 18th, 1933, and that the mandate was issued on the 25th day of February, 1933.
On the mandate being filed in the court below the Honorable W. J. Barker, Judge, entered a final decree in words and figures as follows, to-wit:
"The foregoing cause came on to be finally heard before the Court, a Final Decree heretofore entered by the Court having been reversed and set aside on appeal to the Supreme Court of the State of Florida; and said cause being now before the Court for consideration of the weight and sufficiency of the testimony in this cause upon the question of whether the Notary Public whose certificate of acknowledgment appears upon the mortgage sought to be foreclosed had jurisdiction to make such certificate by having the married woman, whose purported acknowledgment is attacked by a Plea of the defendants in this cause, present; and the Court, having considered the testimony, is of the opinion that the weight of the evidence in this case *Page 604 is in support of the Plea of the Defendants, and the Court isof the opinion that the testimony in this case sufficientlyshows that the Notary Public who took and certified theacknowledgment upon the mortgage sought to be foreclosed didnot have jurisdiction to make such certificate for the reasonthat Virginia McEwen, wife of the defendant, John McEwen, wasnever in the presence of such officer for the purpose ofacknowledging the execution of such mortgage. and the testimonyof the defendants in this cause to that effect is supported andcorroborated by other circumstances which the Court has fullyconsidered. It appears that the property in question is the homestead property of the defendants, and that the mortgage, in the absence of a valid acknowledgment by the married woman, is void. It follows that the Bill of Complaint should be dismissed at the cost of the complainant, and it is so ordered and decreed; In Term at Wauchula, Florida, this 29th day of March, A.D. 1933." (Italics supplied.)
Thereafter, an order was made substituting M. A. Smith as Liquidator of the former plaintiff, Arthur C. Schenck as Receiver of the Bank of Wauchula, and, thereupon, appeal was entered from that final decree.
Questions presented on this appeal are questions which were presented, or could have been presented, on the former appeal in this case.
The record shows that the mandate was filed in the court below on February 27th, 1933, and no further steps were taken in the cause until the Chancellor entered his final decree on March 29th, 1933, in conformity with the opinion and judgment of this Court in that case. The decree of the Chancellor,supra, shows in terms that he weighed and considered all the evidence upon which the decree is based, both pro and con. *Page 605
The opinion and judgment rendered by this Court on the former appeal became the law of the case on the record as then presented and nothing has been done to change that record except the entry of the final decree in conformity with that opinion and judgment after a full consideration of the evidence touching the point involved. We cannot say that the Chancellor's findings as expressed in the decree are without substantial foundation. Therefore, I think the decree should now be affirmed.
ON PETITION FOR REHEARING.