Strong v. Lake Weir Chautauqua & Lyceum Ass'n

• Decision Date: 21 December 1889
• Citation: 25 Fla. 765,6 So. 882
• Court: Florida Supreme Court
• Parties: STRONG v. LAKE WEIR CHAUTAUQUA AND LYCEUM ASS'N.

6 So. 882

25 Fla. 765

STRONG v. LAKE WEIR CHAUTAUQUA AND LYCEUM ASS'N.

Florida Supreme Court

December 21, 1889

Appeal from circuit court, Marion county; J. J. FINLEY, Judge.

Syllabus by the Court

SYLLABUS

1. Under the mechanic's lien law of 1885, providing that the liens 'shall be enforced by attachment in manner provided by law,' the reference is to the general attachment law of the state, and not to attachments authorized in special cases.

2. In the affidavit for the attachment under this act of 1885, it is not required that any of the grounds of attachment in the general law shall be set forth, but only that the facts which constitute the lien should appear as ground therefor, and that otherwise it should conform to that law.

3. The remedy provided relates to the 'manner' of obtaining an attachment; that is, by appropriate affidavit and bond.

4. An attachment bond is not insufficient in respect to the requirement that it shall be 'in double the debt or sum demanded,' because the amount demanded does not appear in the bond, if it is in fact in double that amount, and so shown by the affidavit.

COUNSEL Badger & McConathy, for appellant.

Bullock & Burford and R. L. Anderson, for appellee.

OPINION

MAXWELL, J.

This appeal is from an order dissolving an attachment taken out by appellant to enforce a lien on property of appellee, under the act of 1885, 'to protect mechanics, laborers, and material-men, and to provide for the summary collection of moneys due them for wages or materials furnished.' The proceeding was commenced by a praecipe, and the issuing of a summons inassumpsit, and, in connection therewith, an affidavit and bond for attachment. A writ of attachment was issued and levied on the property described in the affidavit as the property on which appellant claimed a lien. Appellee moved to dissolve the attachment, because of the insufficiency of both the affidavit and the bond to authorize it, the court sustained the motion, and we are called on to determine whether this was error.

The statute, in its first section, so far as that is applicable to this case, provides 'that mechanics and all other persons performing labor upon, or furnishing materials for the construction or repair of any building * * * shall have a lien, separately and jointly, upon the building * * * they may have constructed or repaired, or upon any building * * * for which they may have furnished material of any kind, and on the interest of the owner in the lot or land upon which such building * * * may stand, to the extent of the value of any labor done or material furnished, or for both.' For the enforcement of the lien thus given the ninth section provides that 'the liens created by this act shall be enforced by attachment obtained in manner provided by law; and the courts of this state shall always be open to hear and determine such cases, give final judgment, and issue execution immediately, to the end that there shall be no delay in the enforcement of and collection of such claims.' Chapter 3611. Appellee insists that the attachment in this case was not so obtained, and that therefore it was properly dissolved. So far as the argument relates to any other law than the general attachment law, we do not deem it necessary to follow it. Clearly the reference in the words 'provided by law' could not have been to any special proceeding in attachment prescribed for special cases, as, for instance, under our former statutes, cases of liens on ships or on agricultural crops; for, if the proceeding in any special case had been in contemplation, the act would have so declared. Nor, for the same reason, can the reference be to attachments authorized by sections 4 and 5 of the same act of 1885. The only sensible view is, that the reference is to the manner of obtaining an attachment under the general law on that subject. Not that the requirements of that law as to the subject-matter or ground for the attachment shall be observed in the affidavit, but that there shall be an affidavit setting forth the facts which create the lien, and the further fact that the amount claimed under it is due and unpaid. In other words, there must be an affidavit and bond as a basis for the attachment, as the general law requires but the affidavit, instead of being limited to one or other of the grounds for an attachment under that law, must state the ground which under the act itself authorizes the attachment, the act, in effect, giving a new and additional ground. Any other view would lead to defeat of the very object intended by the summary remedy given, for in most cases the lien creditor could not make oath that his debtor is a non-resident, or is fraudulently disposing of his property, or removing it out of the state etc., and it is not to be supposed that the legislature meant any such futile requirement. We think the law on this subject is correctly expressed in Waples on Attachment, 111, as follows:

'The term 'attachment' is used in several lien laws,--in those authorizing procedure in vindication of builders' and mechanics' liens, etc.; in statutes authorizing seizures by landlords for rent,--but, in all of these attachments are in vindication of specific liens, and the suits are directed against specific property, and are governed by principles applicable to them, though so different from those governing ordinary attachments that the suits must be treated as exceptional with respect to the affidavit.

'In suits upon specific liens, it is not required that the plaintiffs should show that the defendants are non-residents, or absconders or concealers of property, or that ordinary process would prove unavailing. Such suits, though called attachment proceedings, are like those instituted to enforce mortgage liens, in which the essential allegations of the plaintiff are that the debt is owing, and that it is secured by

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