Martin v. Rothar
Decision Date | 13 July 1927 |
Citation | 113 So. 713,94 Fla. 205 |
Parties | MARTIN v. ROTHAR. |
Court | Florida Supreme Court |
Suit by H. P. Rothar against Kate Havlin Martin, executrix of the last will and testament of John H. Havlin, deceased, to enforce a materialman's lien. From a decree for the complainant, defendant appeals.
Reversed in part.
Syllabus by the Court
Attorney's fees are not allowable in action to enforce mechanics' liens (Acts 1923, c. 9323, Rev. Gen. St. 1920, § 3525). That part of the decree allowing fees for complainant's solicitor should be reversed upon authority of the opinion in the case of Palm Beach Bank & Trust Co v. Lainhart et al., 84 Fla. 662, 95 So. 122, and Crim et al. v. Drake, 86 Fla. 470, 98 So. 349, and cases there cited, and should otherwise be affirmed.
Appeal from Circuit Court, Dade County; H. F Atkinson, judge.
Shutts & Bowen and L. S. Julian, all of Miami, for appellant.
W. F Brown, M. S. Bobst, and Roy S. Wood, all of Miami, for appellee.
This was a suit in equity by a materialman against the owner to enforce an alleged materialman's lien against the real estate and buildings erected thereon, as described in the bill of complaint. It does not appear that the heirs of John H. Havlin were necessary parties to the suit. Title to the land might have been in the executrix of John H. Havlin.
Decree was in favor of the complainant for the sum of $442.54 principal, $95.70 interest, and $53.82 as fee for complainant's solicitor.
The record discloses no reversible error except that committed by the chancellor in entering the decree for solicitor's fees.
That part of the decree allowing fees for complainant's solicitor should be reversed upon authority of the opinion in the case of Palm Beach Bank & Trust Co. v. Lainhart et al., 84 Fla. 662, 95 So. 122, and Crim et al. v. Drake, 86 Fla. 470, 98 So. 349, and cases there cited, and should otherwise be affirmed. Chapter 9323, Acts of 1923, does not cure the unconstitutionality of section 3525, Rev. Gen. Stats. The cost of this appeal should be taxed against the complainant, the appellee here; and it is so ordered.
Reversed in part.
The basis of classification involved in chapter 9323, Laws of Florida (Acts of 1923), is distinguishable from that involved in the Texas statute construed and held valid in M., K. & T. Ry. Co. v. Cade, 233 U.S. 642, 34 S.Ct. 678, 58 L.Ed. 1135, both as to the classes of debtors affected and as to the amount contemplated, the latter being also recognized as an element properly...
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