Futch v. Adams

• Decision Date: 05 April 1904
• Citation: 47 Fla. 257,36 So. 575
• Parties: FUTCH v. ADAMS et al.
• Court: Florida Supreme Court

36 So. 575

47 Fla. 257

FUTCH v. ADAMS et al.

Florida Supreme Court

April 5, 1904

In Banc. Appeal from Circuit Court, Columbia County; Bascom H Palmer, Judge.

Action by J. T. Futch against N. Adams and another. From an order sustaining a demurrer to the amended bill, plaintiff appeals. Reversed.

Cockrell J., dissenting.

Syllabus by the Court

SYLLABUS

1. An appeal from interlocutory decrees, some of which were entered more than six months prior to the entry of appeal, will entitle the appellant to have reviewed the propriety of the decrees entered within six months prior to the entry of appeal, but not those entered more than six months prior to the entry of appeal.

2. A demurrer to the whole bill should be overruled if the bill makes any case for equitable relief.

3. The office of a proviso is to restrain the enacting clause; to except something which would otherwise be within it, or in some manner to modify it; and, where it follows and restricts an enacting clause general in its scope and language, it is to be construed strictly, and limited to objects fairly within its terms.

4. The proviso in section 2, c. 4955, p. 97, Act approved May 30 1901, has reference to contracts made with lessees, tenants or operators for the erection or repair of buildings, mills, distilleries, and manufactories leased or otherwise controlled by them, and not to contracts made with the owner of the property, or to contracts for labor or material made with one who contracts with the owner to erect or repair the building, mill, distillery, or manufactory.

5. The liens given by section 1, c. 4955, p. 96, Act approved May 30, 1901, may be enforced by bill in equity under sections 1510, 1744, Rev. St. 1892, as the summary remedy provided by the statute giving the liens is not exclusive.

COUNSEL J. M. Rivers, for appellant.

Roberson & Small, for appellees.

OPINION

CARTER, J.

On March 22, 1902, appellant filed his bill in equity in the circuit court of Columbia county against appellees, praying for the enforcement of an alleged materialman's lien. The defendants filed their demurrer to the bill, which was sustained, and leave given complainant to amend, August 14 1902. Complainant filed his petition for a rehearing, which the court denied September 19, 1902, and the complainant was again given leave to amend the bill. On October 6, 1902, complainant filed his amended bill, which alleges, in substance, that prior to June 7, 1901, Becks entered into a contract with Adams Bros. to erect a two-story brick building on a certain described parcel of land in the town of Lake City, in said county; that Adams Bros. were, and still are, the owners of said parcel of land; that in June, 1901, Becks promised and agreed to buy a large quantity of bricks from complainant, to be used in constructing said building, at a certain stated price, then agreed upon; that payments therefor were to be made as work on the building progressed and as Adams Bros. should pay Becks upon his contract for constructing the building; that complainant, in pursuance of said agreement with Becks, furnished a large amount of bricks at various times between the 2d day of July and the 3d day of December, 1901, an itemized statement of which was attached to the original bill; that said bricks so furnished were all used in the construction of said building; that the prices charged therefor were reasonable; that there remains due and unpaid therefor $717.31, with interest from December 2, 1901; that, Backs having failed and refused to pay the amount due, complainant, on January 18, 1902, notified Adams Bros. by letter of such failure and refusal, and that complainant would hold a lien on the building; that Adams Bros., on January 20, 1902, refused to pay same; that on February 12, 1902, complainant filed with the clerk of the circuit court of Columbia county his duly verified notice of lien on said building, and served a true copy on Adams Bros.; that the notice filed with the clerk was recorded February 12, 1902; that by reason of the defendants' failure to pay the amount due complainant was compelled to bring suit, and to employ counsel for that purpose, and that $250 is a reasonable attorney fee for the services of such counsel. The bill prays that defendants be decreed to pay complainant $717.31, the sum due for bricks, and $250 for attorney fees; that the premises described in the bill be decreed subject to a lien therefor, and, in default of payment of said amounts within a short day, to be fixed by the court, that the premises be sold to satisfy the amount so due, with attorney fees and costs of court; and that defendants be barred and foreclosed of all right and equity of redemption therein.

The defendants filed their demurrer to this amended bill, stating therein the following grounds:

(1) That there is no equity in the bill.

(2) That the bill fails to allege that complainant gave notice to Adams Bros. at the time of making the alleged contract with Becks for brick to be used in constructing the building.

(3) The bill does not allege that complainant complied with the statute requiring notice to be given Adams Bros., the owners of the building, at or before the time furnishing the material to be used in the construction of the building.

(4) The bill is vague, indefinite, and insufficient.

This demurrer was sustained January 7, 1903, and the complainant given leave to amend. Thereafter, on April 3, 1903, complainant appealed.

The entry of appeal embraces not only the order sustaining the demurrer to the amended bill, but the orders sustaining the demurrer to the original bill and denying the petition for a rehearing, and each of these interlocutory orders is assigned as error. No final decree has been entered in the cause, and under the previous rulings of this court an appeal from interlocutory decrees, some of which were entered more than six months prior to the entry of appeal, will entitle the party appealing to have reviewed the propriety of the decree entered within six months prior to the entry of appeal, but not those entered more than six months prior to the entry of appeal. Ray v. Frank, 44 Fla. ----, 32 So. 925; Mattair v. Furchgott, 44 Fla. ----, 32 So. 925; Steinberg v. Richbourg, 45 Fla. ----, 33 So. 521. The orders sustaining the demurrer to the original bill and denying the petition for a rehearing, having been entered more than six months prior to the entry of the appeal in the present case, cannot under the rule stated be reviewed, as the appeal is not from a final decree, but from interlocutory decrees only.

It appears from the allegations of the amended bill that a small portion of the bricks was furnished prior to the time that chapter 4955, p. 96, Act approved May 30, 1901, took effect and it is claimed that as to the amount due therefor no lien exists, because notice to Adams Bros. is not alleged to have been given by complainant in compliance with the requirements of chapter 4143, p. 69, Act approved June 3, 1893. Whether this is so or not we need not now determine, as it is well settled that, if a demurrer is filed to the whole bill--which is the case here--and the bill makes any case for equitable relief, the demurrer will be overruled. Durham v. Stephenson, 41 Fla. 112, 25 So. 284. See, also, Thompson v. Maxwell, 16 Fla. 773; Louisville & Nashville R. R. Co. v. Gibson, 43 Fla. 315, 31 So. 230. We think the bill is properly brought to enforce a lien for the bricks furnished after the act referred to took effect,...