Dell v. Marvin

• Decision Date: 13 April 1899
• Parties: DELL v. MARVIN et al.
• Court: Florida Supreme Court

26 So. 188

41 Fla. 221

DELL v. MARVIN et al.

Florida Supreme Court

April 13, 1899

Error to circuit court, Duval county; William B. Young, Judge.

Proceedings by the sheriff asking directions for distribution of funds belonging to creditors of the Standard Publishing Company. W A. Dell, as assignee, file claims, and John L. Marvin trustee, and others, file claims. From the order of distribution, W. A. Dell brings error. Reversed.

Taylor C.J., dissenting.

Syllabus by the Court

SYLLABUS

1. In actions at law, the consideration of the appellate court will be confined to the errors assigned and argued by the plaintiff in error.

2. The attorney's fees allowed for the successful establishment and enforcement of the lien provided by the act of 1887, c 3747, in favor of mechanics, artisans, laborers, and material men, are incidental to the lien claim, and are entitled to payment on the same basis as the judgment for labor or material furnished.

3. The provision in the twentieth section of the act of 1887, c. 3747, for attorney's fees when judgment shall be rendered in favor of the plaintiff, is not in conflict with the constitution of this state or the constitution of the United States.

COUNSEL A. W. Cockrell & Son, for plaintiff in error.

John E. Hartridge and R. H. Liggett, for defendants in error.

OPINION

MABRY J.

A statement of facts in this case, so far as was necessary on the application then before the court, will be found in Dell v. Marvin, 31 Fla. 152, 12 So. 216. It appears from the record that the sheriff of Duval county filed a motion in the circuit court, entitled in the causes of A. G. Elliott & Co. against the Standard Publishing Company and of I. N. Megargee & Co. against the same defendant, and therein stated that in the said entitled causes and 32 others, in which judgments had been obtained and executions issued, funds specified were in his hands, realized from the sale of property of the defendant, the Standard Publishing Company, but wholly insufficient to satisfy the said several execution creditors, and a contest had arisen and doubts existed as to the proper application of said funds among the said several creditors, and asking the direction and protection of the court as to the application of the funds. With the motion a list of 35 creditors was filed, and it was prayed that they by made parties by appropriate process, and required to interplead among themselves, and be concluded by the judgment of the court. All the creditors appearing by their respective attorneys, an order was made by the circuit judge that the several creditors file in writing, within a time stated, their respective claims to the funds in the hands of the sheriff and the grounds upon which they claimed priority of lien. The order also directed that each creditor might take issue upon or contest the claim of another creditor. Plaintiff in error, as assignee, filed a statement of claim of 27 judgments obtained by different parties before the county judge of the county, and 2 obtained in the circuit court, and executions thereon against the Standard Publishing Company. J. L. Marvin, trustee, filed a statement of claim of the judgment and execution of Megargee & Co. and a mortgage given by the Standard Publishing Company to him as trustee. A. G. Elliott & Co. filed a statement of claim of two circuit court judgments and executions issued thereon. The Citizens' Gas & Electric Company filed a statement of claim of a judgment, and Elizabeth S. Robinson filed a statement of claim for rent alleged to be due from the Standard Publishing Company.

The amounts of the various claims propounded, including the dates and amounts of judgments, together with costs and attorney's fee of $25 allowed in each case, were shown. The grounds of priority of payment out of the funds were set out in the written statements of demands, and there were contests among the various creditors as to the validity of each other's claims, including the constitutionality of the law under which attorney's fees were allowed in the judgments held by plaintiff in error. The final judgment on the motion recites: 'Said motion coming on to be again heard, came the several parties interested herein, intervening under the order of this court, and the said defendant, by their several attorneys, and was submitted to the court, upon said several interventions, the objections and exceptions severally thereto, and the issues severally joined thereon, upon the records and proceedings of record and file in this court, and in the court of the county judge of said Duval county, in which the said several records and proceedings were respectively had, and upon the testimony of witnesses and documentary evidence produced in open court, and was argued at length by the respective counsel,' and thereupon it was ordered that so much (stating the amount) of each of the 29 judgments held by plaintiff in error as was recovered for services rendered by the plaintiffs therein prior to February 16, 1892, as employés of the Standard Publishing Company, was a prior lien on the funds, as was also the costs, except $25 taxed in each case as attorney's fee, under section 20, c. 3747, Act 1887, which section was, in so far as it allows such fees, declared to be unconstitutional and void; that the Megargee & Co. judgment held by J. L. Marvin, trustee, was entitled to be first paid out of the remaining funds, and the Elliott & Co. and Citizens' Gas & Electric Company judgments be paid, share and share alike, out of the residue; and, as this exhausted the funds held by the sheriff, the claims of the remaining interveners were denied and disallowed.

Dell alone sued out a writ of error, and assigns as error the ruling of the court declaring so much of section 20, c. 3747, Id., providing for attorney's fees, to be unconstitutional, and directing that no part of the funds in the hands of the sheriff be applied in payment of such fees.

The case is presented on the record without a bill of exceptions, and no objection is anywhere made to the procedure in the circuit court in settling the conflicting claims of the various creditors to the funds in the hands of the sheriff.

It sufficiently appears from the record that plaintiff in error was holder of judgments obtained under chapter 3747, Act 1887, being 'An act to protect mechanics, artisans, laborers and material men, and to provide for the speedy collection of moneys due them for wages or materials furnished,' and the order of the court is that so much of each judgment (stating definitely the amount of each), for services rendered by the plaintiffs named therein as employés of the Standard Publishing Company previous to a given date, including costs of suit, but not the attorney's fee taxed therein, was a prior lien on the funds in the hands of the sheriff, and should be first paid. The attorney's fee feature of each judgment was denied participation in the funds on the sole ground that the provision of the act allowing it was unconstitutional. The view of reasonableness of the did not enter into the decision, nor has contention been made that the amounts in the judgments were unreasonable.

In brief of counsel filed on behalf of Marvin, one of the defendants in error, it is insisted that the court erred in allowing any part of the judgments held by plaintiff in error to share in the funds, but this contention cannot be entertained by us. Marvin has not sued out any writ of error from the judgment rendered, and the only question open for consideration arises on the error assigned by plaintiff in error, which is the constitutionality of the provision in the act providing for attorney's fees.

The act under which the judgments held by plaintiff in error were rendered created a lien in favor of mechanics, material men, and various classes of laborers for work and labor done and material furnished, and the procedure for enforcing the lien is provided.

By section 20 it is enacted 'that if upon trial of the case it shall be found in favor of the plaintiff, then judgment shall be rendered in his favor for the amount as returned by the jury, together with the costs of the court, and an attorney's fee of not less than ten dollars ($10) if the suit is tried before a justice of the peace, and not less than twenty-five dollars ($25) if it be tried before the county judge, the judge of the county or circuit court.' The attorney's fee provided is for the successful establishment and enforcement of the lien given, and is incidental thereto. If such fees cannot be considered as part of the court costs, they must be regarded as incidents to the enforcement of the lien, and, in our judgment, if the provision for them be valid, they are entitled to payment on the same basis as the judgment for labor or material furnished. McIntyre v. Trautner, 78 Cal. 449, 21 P 15. The act of 1887 was passed soon after the constitution of 1885...