Reid v. Merrell

• Decision Date: 29 October 1930
• Citation: 100 Fla. 1110,130 So. 713
• Parties: REID v. MERRELL.
• Court: Florida Supreme Court

130 So. 713

100 Fla. 1110

REID v. MERRELL.

Florida Supreme Court

October 29, 1930

Commissioners' Decision.

Suit by Arthur C. Merrell against James R. Reid. Decree for complainant, and defendant appeals.

Affirmed in part, and reversed in part.

Appeal from Circuit Court, Dade County; A. J. Rose, Judge.

COUNSEL

H Pierre Branning, J. R. B. Clemons, and Cecil C. Curry, all of Miami, for appellant.

Godard & Hyzer, of Miami, for appellee.

OPINION

ANDREWS C.

Upon a mortgage foreclosure brought by appellee, the final decree awarded complainant $2,000 as principal, plus $682.57 as interest, plus taxes and costs. The decree also contrimed the report of the general master in chancery finding the sum of $500 as a reasonable attorneys' fee. No predicate is laid in the bill of complaint that complainant ever agreed or was obligated to pay his solicitors any amount to foreclose said mortgage, which is a prerequisite to an awarding of such fees. Blount Bros. Realty Co. v Eilenberger, 98 Fla. 775, 124 So. 41.

Each point raised by appellant has been duly considered, and there being no error shown as to awarding the decree for principal, interest, taxes, and costs, the final decree is affirmed as to those items. See Wayne Realty & Inv. Co. v. Whitten, 90 Fla. 433, 106 So. 125; Simon v. Williams, 140 Miss. 854, 105 So. 487, 44 A. L. R. 402, 406; Kirkland v. Tampa, 75 Fla. 271, 78 So. 17.

The decree is reversed as to the awarding of $500 solicitors' fee, which is nearly 20 per cent. of the sum of the principal and interest due. It is not only excessive, but there is no allegation or proof that complainant ever agreed to pay any fee to his solicitors. Winchester v. Hak, 98 Fla. 1071, 124 So. 812.

We do not overlook the fact that this case has heretofore been appealed to this court from an order overruling a demurrer to the bill of complaint, which demurrer was found to be without merit (Reed v. Merrill, 94 Fla. 964, 114 So. 783) and the order overruling same affirmed without formal opinion. It is also noted that the issues are very simple, the transcript containing only 104 pages on this appeal from final decree.

Affirmed in part and reversed in part.

PER CURIAM.

The record in this cause having been considered by the court, and the foregoing opinion prepared under chapter 14553, Acts of 1929, adopted by the court as its opinion, it is considered ordered, and decreed by the court that the decree of the court below should be, and the same is hereby, affirmed as to the award for principal, interest, taxes, and costs, but that said decree be, and the same is hereby,...