Drake Lumber Co. v. Semple

• Decision Date: 07 July 1930
• Citation: 100 Fla. 1771,130 So. 577
• Parties: DRAKE LUMBER CO. v. SEMPLE et al. W. P. THURSTON CO., Inc. v. ANDERSON PROPERTIES, Inc., et al. ANDERSON PROPERTIES, Inc. v. SEMPLE et al.
• Court: Florida Supreme Court

130 So. 577

100 Fla. 1771

DRAKE LUMBER CO. v. SEMPLE et al.

W. P. THURSTON CO., Inc. v. ANDERSON PROPERTIES, Inc., et al.

ANDERSON PROPERTIES, Inc. v. SEMPLE et al.

Florida Supreme Court

July 7, 1930

Rehearing Denied Nov. 8, 1930.

Commissioners' Decision.

Suit by the W. P. Thurston Company, Incorporated, against the Anderson Properties, Incorporated, the Drake Lumber Company and another, in which the lumber company filed a cross-action, and suit by E. L. Semple against the Anderson Properties, Incorporated, and others. From the decree determining respective priorities of mortgage contractor's lien, and claim for materials, the Drake Lumber Company, the W. P. Thurston Company, Incorporated, and the Anderson Properties, Incorporated, separately appeal.

Affirmed. Appeal from Circuit Court, Dade County; H. F Atkinson, judge.

COUNSEL

Lilburn R. Railey, Harold M. Wilson, and David B. Newsom, all of Miami, for appellants.

Loftin, Stokes & Calkins, H. H. Taylor, and Semple & Hirschman, all of Miami, for appellees.

OPINION

ANDREWS C.

This litigation involves: (1) The foreclosure of a mortgage held by E. L. Semple as assignee of said mortgage; (2) the foreclosure of a contractor's lien for labor and material by W. P. Thurston Company, Inc.; and (3) claim for materialman's lien by the Drake Lumber Company--all incumbering or purporting to incumber lot 5, block 2, Spring Garden subdivision, Nos. 1 and 2, in Dade county, Fla., owned by Anderson Properties, Inc., upon which lot there was being constructed a large apartment house.

The suits were consolidated, and a final decree was entered finding: (1) That the mortgage held by Semple was a prior lien, (2) that the contractor's lien held by the Thurston Company for labor and material was next in priority, and (3) that the claim of Drake Lumber Company for material furnished was excluded as a statutory lien because the time for filing suit within twelve months had expired. The Anderson Properties, Inc., the Thurston Company, and the Drake Lumber Company took appeal. Other parties named defendants in original suits were dismissed before final decree was entered.

It appears that in July, 1925, Anderson Properties, Inc., having contracted to buy said lot in Spring Garden subdivision, entered into an agreement with one M. P. Tooker, a contractor, for the construction of an apartment house thereon, and the Drake Lumber Company, one of the appellants here, furnished said Tooker building material in the aggregate amount of $2,674.55 used in the beginning of said construction. The last material was delivered to Tooker on September 5, 1925, and on October 10, thereafter, he abandoned his construction contract. The said Anderson Properties, Inc., on October 15, 1925, executed an agreement with the Drake Lumber Company, acknowledging the above amount as due and agreed to pay for same. On October 16 and October 26, 1925, the said Drake Lumber Company furnished additional materials of the value of $195, upon the direct request and order of the owner, Anderson Properties, Inc. On October 10, 1925, the same date that said Tooker abandoned his contract, the title to said lot being perfected in Anderson Properties, Inc., it borrowed from H. C. Thompson $10,000, for which it gave a ninety-day note secured by a mortgage on said property, while said building was under construction; said mortgage being the one involved in this litigation. On November 16, Anderson Properties, Inc., entered into a written contract with said Thurston Company in which the latter company agreed to furnish all labor, tools, equipment, transportation, material, and everything necessary to complete the construction.

Taking the liens in the order in which each originally arose, it was stipulated and agreed between the parties to these suits that the said Drake Lumber Company furnished material to the original contractor, Tooker, between July 31 and September 9, 1925, in the amount of $2,674.55, and that said Drake Lumber Company on October 16, and October 26, 1925, furnished additional material used in said building in the amount of $195, on the direct order of Anderson Properties, Inc. It was also stipulated and agreed that if the lien of Drake Lumber Company is not barred by the statute limiting the time in which material lien foreclosures may be brought, it is still valid, effective, and superior to the lien of the W. P. Thurston Company, Inc., which entered into its construction contract on November 16, 1925, also superior to the lien of the mortgage given October 10, 1925, by said Anderson Properties, Inc., to H. C. Thompson, which was by mesne assignments transferred to E. L. Semple, complainant in foreclosure and one of the appellees here.

The W. P. Thurston Company, between November 16, 1925, and March 1, 1926, performed the work and furnished the material in said construction in the total amount of $39,584.34, of which $10,180.34 was paid, and claims a lien on said premises for the unpaid balance with interest at 8 per cent. thereon from March 1, 1926. It was stipulated and agreed between all parties to the suits which had been consolidated that if the Thompson mortgage dated October 10, 1926 (now held by Semple), 'is still unpaid,' it is superior to the lien of the W. P. Thurston Company, Inc.

The issue as to the claims of the Drake Lumber Company rested mainly upon the above stipulation, and no evidence was taken in support of or in opposition to its claim, and the matter went to hearing before the general master and later before the chancellor on testimony presented by the other parties to the suit. There is no contention here that the notice of lien which was filed by Drake Lumber Company on April 28, 1926, was within ninety days of the furnishing of the last material as required by statute to be effective in law. It is contended, however, that inasmuch as all lienors may, under section 5394, Compiled General Laws 1927, consolidate and bring one suit to enforce their respective liens, that as the Thurston Company brought suit within one year of the furnishing of the material by the Drake Lumber Company, to which the latter, being made a party defendant, filed its appearance within one year, that being thus brought into the suit it was unnecessary to institute a separate suit when its claims could thereby be placed before the court in an action to determine its rights. It appears that the Drake Lumber Company relies for its authority, among others, upon 18 R. C. L. 979, § 120, and the cases there cited, wherein the general proposition is stated that if one lienor institutes a suit to enforce his lien and makes another lienor a party defendant, setting forth the latter's recorded lien in his bill, that the court should determine the rights of the parties. It seems that the above rule would apply only where the other suit to foreclose set forth 'the latter's recorded lien in his bill.' In the present case the amended bill of Thurston Company filed August 6, 1926, merely alleged that the defendant Drake Lumber Company has or claims to have some interest in the property by virtue of a lien filed for record April 28, 1926, inferior to complainant's lien. The notice of lien of Drake Lumber Company, having been filed three months after the expiration of the ninety days from the last date of the furnishing of the material, is barred by the statute, and such an allegation in the Thurston bill could not have the effect of reestablishing or reviving it. The year within which the Drake Lumber Company could bring suit expired October 26, 1926. At that time only the appearance of the said company filed on September 6, 1926, was of record, except the notice of lien filed April 28, 1926, which, as above stated, was barred by the statute. A cross-bill of the Drake Lumber Company to the bill of the said Thurston Company was filed on November 29, 1926, which of course was more than a year from the last date of furnishing of material, which was October 26, 1925.

While section 5394, Compiled General Laws of Florida 1927, permits lien claimants to file joint suits to enforce all liens claimed by such claimants, this was not done in this case. It might be that if the Drake Lumber Company had filed its cross-bill fully setting up its claim within the year, it would have been a sufficient compliance with the statute. In the case of Baugher v. Cohen (Fla.) 124 So. 813, it was held that a chancery suit to enforce a materialman's lien is 'brought' when the complaint is duly filed with the clerk. In Booker & Co. v. Leon H. Watson, Inc. (Fla.) 123 So. 837, it was held that if it develops that the date for filing the suit was more than one year after the last furnishing of material, and that no notice had been filed in the office of the clerk of the circuit court, as by statute required, the suit would abate, because the lien expires by limitation at the end of twelve months from the last furnishing of materials, and when the lien shall have expired a suit cannot be maintained to enforce same.

The Drake Lumber Company insists that making it a party defendant to the bill saved it from being barred by the statute, because: (1) The statute permits two or more lien claimants to join in one suit against the common debtor; (2) the rights of all lien claimants are saved when one lien claimant brings suit to foreclose and serves process on the others as defendants; (3) the Thurston Company's suit put the Drake Lumber Company's lien in litigation; and (4) the Thurston Company cannot question the validity of the Drake Lumber Company's claim.

The above contentions have been carefully considered with the authorities cited, and it is our opinion that the admitted facts and record in this case do not bring the Drake Lumber Company...