State Ex Rel. Gore v. Chillingworth

• Decision Date: 16 December 1936
• Citation: 126 Fla. 645,171 So. 649
• Parties: STATE ex rel. GORE v. CHILLINGWORTH et al.
• Court: Florida Supreme Court

171 So. 649

126 Fla. 645

STATE ex rel. GORE v. CHILLINGWORTH et al.

Florida Supreme Court

December 16, 1936

Rehearing Denied Jan. 16, 1937.

En Banc.

Original prohibition proceeding by the State, in the elation of R. H Gore individually, and R. H. Gore as trustee for the R. H Gore Company, an Illinois corporation, against C. E Chillingworth and another, Judges of the Fifteenth Judicial Circuit of the State of Florida, and another, wherein respondents moved to quash the rule to show cause.

Motion to quash the rule to show cause granted.

COUNSEL

McCune, Hiaasen & Fleming, of Fort Lauderdale, for petitioner.

C. L. Chancey and J. T. Chancey, both of Fort Lauderdale, for respondents.

OPINION

ELLIS Presiding Justice.

It appears from the suggestion in this case that Vincent J. Mistretta had a contract with R. H. Gore, individually and as trustee for the R. H. Gore Company, for the performance of labor in the construction of a garage apartment and improvements or repairs to other buildings located upon certain described lots of land in Broward county. It appears that the work was completed on June 1, 1936, on which date, after deductions made for payments upon the contract of employment, there remained due to Mistretta by Gore, individually and as trustee, the sum of $2,000. Thereupon, Mistretta on the 13th day of July, 1936, filed his petition in the circuit court for Broward county under the provisions of section 5382, C.G.L.1927, for the enforcement of the lien claimed by Mistretta for work done and labor performed upon the buildings mentioned. The petition prayed for the entry of a personal judgment against R. H. Gore, individually, and against R. H. Gore as trustee for the R. H. Gore Company, severally, and for a lien upon the premises described in the petition for the balance alleged to be due of $2,000 and interest thereon from June 1, 1936, as well as 15 per cent. upon the amount for attorneys' fees which Mistretta claimed he was entitled to recover.

Section 5382, C.G.L., supra, provides several methods for the enforcement of such liens. They are as follows: First, by retention of possession of the property; second, by a bill in equity; third, by an ordinary action at law and levy of execution upon the property upon which the lien is claimed; fourth, by a suit at law in which the declaration should state the manner in which the lien arose, the amount for which the lien is held, the description of the property, and a prayer that the property be sold to satisfy the lien. The statute provides that if the latter method is adopted, the judgment for the plaintiff shall be a personal judgment as well as declare a lien upon the property on which the lien is claimed, and shall direct execution against such property as well as against the property generally of the defendant; fifth, by any person claiming a lien for labor performed, his legal representative, agent, or assigns, making or filing, in the court having jurisdiction of the amount of the lien claimed, a petition under oath describing the premises or property on which a lien is claimed and stating the facts which authorize or create the lien.

The statute provides that upon the filing of such petition the clerk of the court or judge thereof shall issue a summons describing the premises or property on which the lien is claimed, the amount of such lien, and requiring the person or persons against whom such lien is claimed to forthwith pay such claim or show cause before such court within five days why such claim should not be paid. Such summons shall be served forthwith by the sheriff of the county in the manner provided for serving of summons ad respondendum.

The petition was filed, as it appears, under the fifth clause of the statute and upon the filing of such petition a summons was duly issued and dated on July 13, 1936, returnable July 18, 1936. Such summons appears, from the return thereof as made by the sheriff, to have been served on the 16th day of July 1936, notwithstanding the requirement of the statute that it should be served forthwith.

It appears from the record therefore that although the statute provides for the issuing of a summons requiring the defendant to forthwith pay the claim or show cause within five days why the claim shall not be paid, the sheriff held the summons from the 13th of July until the 16th of that month, before he served the summons upon the defendant, depriving the defendant of three days out of the five which the statute allowed him in which to show cause why such claim should not be paid.

The defendant in his individual and representative capacity appeared specially on the 18th day of July for the purpose of quashing the summons. The grounds on which the special appearance rested were enumerated as follows:

'1. That the summons issued in this cause on July 13, 1936, is returnable on Saturday, July 18, 1936; that the return day is not a rule day; that the return day is less than ten days from the issuance or service of said summons.

'2. That the said summons was issued pursuant to certain provisions of chapter 12079, General Acts of 1927 (section 5382, C.G.L.); that said provisions of said chapter 12079, pursuant to which said summons was issued were repealed by certain provisions of chapter 17097, General Acts of 1935, enacting the Uniform Mechanic's Lien Act.

'3. The provisions of chapter 12079, General Acts of 1927, pursuant to which said summons was issued are null and void and unconstitutional for the following reasons;

'(a) The title of said chapter is not in conformity with section 16, article 3 of the Florida Constitution.

'(b) The provisions of said Act pursuant to which said summons was issued are in violation of section 11, article 5 of the Florida Constitution.

'(c) That said provisions of said Act violate the Florida Constitution in that they seek to confer upon courts at law the powers and Jurisdictions of courts of equity.

'(d) Courts of equity and not courts of law have jurisdiction for the enforcement of statutory laboriers' liens.

'4. Said summons was not issued in conformity with the provisions of section 5382, C.G.L. of Florida.

'5. Said summons was not in accordance with the provisions of chapter 12079, General Acts of 1927.

'6. The writ of Summons does not comply with Rule No. 8 governing the practice of the circuit courts of Florida in actions at law.'

It appears that the defendant did not raise the point that the service of the summons was delayed by the sheriff for three days, thus depriving the defendant of the full five days within which to show cause why the claim should not be paid.

The court on order dated July 25, 1936, denied the defendant's special appearance and motion to quash the writ of summons. In such order the court also denied a motion by the plaintiff for default and final judgment and allowed the defendant fourteen days within which to plead.

Thereupon the defendant, on the 20th of July, 1936, caused to be filed in this court the suggestion above referred to for a rule against C. E. Chillingworth and George W. Tedder, Judges of the Fifteenth Judicial Circuit, and Vincent J. Mistretta, to show cause why a writ of prohibition should not issue against them prohibiting them from proceeding further against the petitioner R. H. Gore, individually and in his representative capacity, in the statutory action herein described, which in the suggestion is referred to as a common-law action.

Pursuant to that suggestion on August 1, 1936, this court issued its rule to show cause against the said Chillingworth, Tedder, and Mistretta why a writ of prohibition should not be awarded prohibiting them from proceeding further in the cause and in the meantime that all further proceedings in the statutory action be stayed.

On August 8, 1936, attorneys for Judge Chillingworth and Vincent Mistretta moved the court to quash the rule to show cause upon the grounds, among others, that the summons in the statutory action was issued and served strictly in accordance with the provisions of paragraph 5, subpar. a, of section 5382, C.G.L., supra.

Other grounds of the motion were that the provisions of the statute above referred to were not repealed by section 32 of chapter 17097, General Acts 1935; that the provisions of the act under which the statutory action was begun are not violative of any clause of the State or Federal Constitution; that the suggestion for the writ of prohibition does not show that two days were not sufficient time for the said Gore to respond to the summons, nor that the court failed to allow ample time within which to plead; that the said Gore waived any defects in the service of the summons in the statutory action by moving to 'quash said summons upon the grounds that the Statute (chapter 12079 General Acts 1927) under which said summons was issued and served were repealed by the provisions of chapter 17097 General Acts 1935'; and that the provisions of said former act under which the statutory action was begun were violative of certain constitutional provisions.

Upon the question of defective service of the summons issued in the statutory cause for the enforcement of the lien, it will be observed that there was an actual service of the summons, but that such service was not made forthwith as the statute requires, and that by the failure of the sheriff to forthwith serve the process and deferring it for three days he deprived Gore of the five days contemplated by the statute within which he might show cause why the claim should not be paid.

A distinction is to be noted between a total want of service where the defendant received no notice at all, and a service which is irregular or defective but actually gives the defendant notice of the...