
    C. L. Beugnot, Plaintiff in Error, v. F. E. Gober, Defendant in Error.
    
    Division B.
    Decision filed February 19, 1929.
    Petition for rehearing denied April 24, 1929.
    
      James T. Vocelle, for Plaintiff in Error;
    
      Alto Adams, for Defendant in Error.
   Per Curiam.

This cause having heretofore been submitted to the Court upon the transcript of the record of the judgment herein, and briefs and argument of counsel for the respective parties, and the record having been seen and inspected, and the Court being now advised of its judgment to be given in the premises, it seems to the Court that there is no error in the said judgment; it is, therefore, considered, ordered and adjudged by the Court that the said judgment of the circuit court be, and the same is hereby affirmed.

Whitfield, P. J., Buford, J., and Lons, Circuit Judge, concur.

Long (Circuit Judge) :

The petition for rehearing in this cause suggests that this Court in affirming the judgment of the lower court overlooked the opinion in Fagan v. Robbins, 96 Fla. 91, 117 So. R. 863, because at the time of the entry of the deficiency decree complained of the Circuit Judge was of the opinion that under the provisions of Chapter 7839, Acts of 1919, it became mandatory for him to do so. Irrespective of what might have been in the mind of the lower court, the fact remains that an affidavit of illegality is not applicable to a decree that was not illegal, and while the chancellor may have labored under the belief that he had no discretion in the matter, that fact alone would not render the deficiency decree illegal.

No appeal having been taken from the entry of the deficiency decree such decree is still binding on the plaintiff in error.

Rehearing denied.

Whitfield, Brown and Buford, J. J., concur.  