Amatrudi v. Blake, 58-721

• Decision Date: 25 January 1960
• Docket Number: No. 58-721,58-721
• Citation: 117 So.2d 416
• Parties: Anthony AMATRUDI, d/b/a Olympic Pools, Appellant, v. John Joseph BLAKE, Margaret G. Blake and The Florida National Bank and Trust Company at Miami, a corporation, Appellees.
• Court: Florida District Court of Appeals

Page 416

117 So.2d 416

Anthony AMATRUDI, d/b/a Olympic Pools, Appellant, v. John Joseph BLAKE, Margaret G. Blake and The Florida National Bank and Trust Company at Miami, a corporation, Appellees.

No. 58-721.

District Court of Appeal of Florida, Third District.

Jan. 25, 1960.

Rehearing Stricken Feb. 12, 1960.

Klein, Moore & Kline, Miami Beach, for appellant.

Walton, Lantaff, Schroeder, Atkins, Carson & Wahl and Hugh R. Papy, Miami, for Florida Nat. Bank & Trust Co. at Miami.

Jepeway & Gassen and Neal J. Dunn, Miami, for John Joseph Blake and Margaret G. Blake, appellees.

TILLMAN PEARSON, Judge.

The plaintiff appeals from an order of the circuit court dismissing his complaint and transferring the cause to the Civil Court of Record in and for Dade County, Florida. The complaint was for the foreclosure of a mechanic's lien against the equitable interest of the defendants, John Joseph Blake and Margaret G. Blake in certain real property. The equitable interest was created by a trust agreement, which gave the legal title of the property involved to the Florida National Bank and Trust Company with the beneficial interest in the Blakes. The plaintiff prayed for an accounting, that the trust agreement referred to be declared invalid, and for foreclosure of his lien.

The first question which is presented is whether or not the order appealed is an appealable order. It is apparent from an examination of the order itself that it does not purport to finally dispose of the subject matter of the litigation. Ordinarily, orders to transfer from one court to another are not considered final orders. Inasmuch as this order is appealable as an interlocutory order we have undertaken to hear the appeal and will consider it for the purposes of this opinion as an interlocutory appeal. See Welch v. Graves Brothers Co., Fla.App.1960, 117 So.2d 853. Cf. Hensley v. Palmer, Fla.1952, 59 So.2d 851; Beck v. Barnett Nat. Bank of Jacksonville, Fla.App.1960, 117 So.2d 45.

The controlling question is whether or not the mechanics' lien act provides for foreclosure against an equitable ownership in property. It is well established that in order to have a statutory lien the plaintiff must bring himself under the terms of the statute. E.g., Sheffield-Briggs Steel Products, Inc. v. Ace Concrete Service Co., Fla.1953, 63 So.2d 924; Grossman v. Pollack, Fla.App.1958, 100 So.2d 660.

Section 84.01, Fla.Stat., F.S.A., provides for liens under certain circumstances against the interest of an 'owner'. This section defines owner as follows:

"Owner' means the owner of real property or any interest therein who enters into a contract for the improvement of such real property and who may be the owner in fee of the real property, or of a lesser estate therein, a lessee for a term of years therein, a person having any right, title or interest in the real property which may be sold under legal process, or a vendee in possession under a contract for the purchase of the real property or any such right, title or interest therein.'

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