Price v. Boden

• Citation: 22 So. 657,39 Fla. 218
• Parties: PRICE et al. v. BODEN et al.
• Decision Date: 18 May 1897
• Court: United States State Supreme Court of Florida

22 So. 657

39 Fla. 218

PRICE et al. v. BODEN et al.

Florida Supreme Court

May 18, 1897

Appeal from circuit court, Duval county; William B. Young, Judge.

Bill by J. H. Boden against J. S. Price and others. Decree for complainant, and Price and certain other defendants appeal. Modified.

Syllabus by the Court

SYLLABUS

1. After a decree pro confesso has been regularly entered against a defendant in a chancery cause, he so far loses his standing in the court as not to be entitled to notice or hearing in the future proceedings.

2. It is not error to enter a final decree against a defendant under a default on the same day that the report of a master is filed, if the case is in a condition otherwise to be decreed.

3. While the proceedings after a decree pro confesso are ex parte, and the party in default not entitled to notice, or of right to be heard, the final decree is not one as of course according to the prayer of the bill, or as the complainant chooses to make it, but it should be made by the court according to what is proper to be decreed upon the statements of the bill assumed to be true.

4. In a bill filed to enforce a mechanic's lien under the statutes in force prior to the adoption of the Revised Statutes, no demand was made for attorney's fees, and no allegation in reference to such matter was contained in the bill, and after a decree pro confesso complainant obtained a decree for attorney's fees. Held, without considering whether attorney's fees in any case on a bill to enforce a mechanic's lien under the statute then in force could be allowed, that the allowance of the fee on the bill in this case was erroneous.

COUNSEL A. H. King and Walker & L'Engle, for appellants.

OPINION

MABRY J.

In December, 1891, appellee J. H. Boden filed a bill to enforce a mechanic's lien on a certain building and lot, against J. S. Price, Thomas L. Allen, Silas Brady, R. A. Burge, and S. O. King, trustees of the Methodist Episcopal Church Riverside; Anna E. Keeler; and R. B. Archibald, president of the board of trustees of St. Luke's Hospital.

The case stated in the bill is that complainant, Boden, in pursuance of an agreement with the church trustees named commenced to furnish materials and erect a church building on lot 1, block 37, Riverside, and completed the building on the 6th day of August, 1891, when it was turned over to said trustees; that the trustees paid complainant part on said building, and on August 20, 1891, there remained due thereon the sum of $340.46, for which he held a lien. It is also alleged that complainant filed a notice of lien on the 20th day of August, 1891, in the clerk's office, for Duval county. The bill further alleges that on the 1st day of May, and the 21st day of August, 1891, mortgages were executed by the church trustees to Anna E. Keeler and R. B Archibald, president of the board of trustees of St. Luke's Hospital, for sums stated due each respectively, but that complainant's lien was prior and superior to said mortgages. The prayer is that the court ascertain what was due from the trustees to complainant; that it be declared a superior lien to that of the mortgages; and, in default of payment, the property be sold, and out of the proceeds there be paid the costs and expenses of the suit, the sum found to be due complainant, and the remainder, if any, be paid into the registry of the court.

Decree pro confesso was entered as to the trustees of the church and the other defendants (mortgagees) filed answers and cross bills. It is made to appear from a decree pro confesso, signed by the judge, that exceptions to the answers were sustained, and, defendants failing to further answer as required, the bill was taken as confessed as to them. It further appears that a master made a report showing the amount due complainant, and also a sum to be allowed as an attorney's fee, and this report was confirmed, and a decree entered declaring complainant's lien superior to the mortgages, and ordering the sale of the property by a master to pay the same, including the attorney's fee. On motion, this decree and the reference upon which it was based were set aside, as being prematurely made; and a further decree made, reciting that the original and cross bills came on to be heard upon exhibits, answers, and decrees pro confesso, and adjudging that complainant had a lien prior to the lien of the mortgages, and also adjusting the priority of the latter. In this decree a reference was made to a master, to state what was due complainant and each of the mortgagees, including attorney's fees. The master reported on the 21st of June, 1892, and this report was confirmed, and on the same day a decree was entered directing the master to sell the property, and pay the claims of complainant and the mortgagees in the order allowed. Under this decree, the master sold the property to one of the mortgagees, R. B. Archibald, and disbursed the proceeds as directed by the court. The report of the sale was confirmed August 6, 1892, and, it appearing that the proceeds from the same was not sufficient to pay costs and...