Martin v. Rothar

Decision Date13 July 1927
Citation113 So. 713,94 Fla. 205
PartiesMARTIN v. ROTHAR.
CourtFlorida 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

SYLLABUS

Attorney's fees are not allowable in action to enforce mechanics' liens (Acts 1923, c. 9323, amending 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.

COUNSEL

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.

OPINION

PER CURIAM.

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.

WHITFIELD, P.J., and TERRELL and BUFORD, JJ., concur.

ELLIS, C.J., and STRUM and BROWN, JJ., concur in the opinion.

CONCURRING

STRUM J. (concurring).

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. &amp 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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3 cases
  • Hunter v. Flowers
    • United States
    • United States State Supreme Court of Florida
    • December 23, 1949
    ...including both materialmen's and laborers' liens, see Franklin Savings and Loan Company v. Fisk, 98 Fla. 683, 124 So. 42; Martin v. Rother, 94 Fla. 205, 113 So. 713, on the basis of a decision of the Circuit Court of Appeals for the Fifth Circuit in Union Terminal Co. et al. v. Turner Const......
  • Schruben v. Johnson
    • United States
    • United States State Supreme Court of Florida
    • July 13, 1927
  • Martin v. Wilson
    • United States
    • United States State Supreme Court of Florida
    • July 13, 1927
    ...... herein should be affirmed, except as to that part of the. decree allowing attorney's fees, which should be. reversed, and the costs of the appeal should be taxed against. the complainant on authority of the opinion in the case of. Kate Havlin Martin et al. v. Rothar (Fla.) 113 So. 713, decided at this term of the court; and it is so ordered. . . Reversed. in part. . . WHITFIELD,. P.J., and TERRELL and BUFORD, JJ., concur. . . ELLIS,. C.J., and STRUM and BROWN, JJ., concur in the opinion. ......

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