36 Fla. 660 | Fla. | 1895
James L. Clarkson alone has appealed in this case, but as the final decree as to him only adjudges his separate lien, if he has any, on the property involved in the suit to be subordinate to that of appellees, we may consider the decree as not being so joint as to necessities the joinder in the appeal on the part of A. J. Eose. As the 'latter has not appealed, neither the sufficiency of his demurrer to the bill, nor any other question affecting his rights and interests, is involved here. Decree pro confesso was entered against James L. Clarkson, and appellees were entitled to such final decree against him as their bill warranted. An ap
The first assignment of error is, that the court erred in entering the final decree without proof of the allegations of the bill. Ho proof was necessary to sustain any of the allegations of'the bill, even against A. J. Rose, for the reason that he expressly admitted every one to be true, except one, and that was not denied, and as to appellant, all the allegations were adjudged to be true by the decree pro confesso. The testimony of any number of witnesses sustaining the allegations of the bill would not have made it more conclusive against him. So, there can be no merit in the assignment that the court erred in entering the decree without proof of the allegations of the bill. .
The third assignment of error may be briefly disposed of in this connection. The brief of counsel for appellant does not point out any error of the court in the ruling on the application for a rehearing, and under the rule we might omit any reference to this rul
The second and only other assignment of error is, that the court erred in decreeing that a mechanic’s lien could be corrected by bill in equity after the time for filing the lien had expired by law. This assignment of error and the argument of counsel in support, thereof are based upon the erroneous view that the-case is governed by the act of 1887, Chapter 3747. The act of 1885 (Chapter 3611) is the one that was in force when the lien claimed attached. By this act mechanics and all other persons performing labor upon, or furnishing materials for the construction or repair of, any building were given a lien separately and jointly upon such building and the interest of the owner in the lot or land upon which the building stood, to the extent of the value of any labor done or material furnished, or for botli, and no lien or notice of lien was required to be filed in any office. Under the prior law it was necessary, in order to acquire a lien in favor of mechanics, that notice should be filed in the office of
Under the allegations of the bill before us there can be no doubt that Sigsbee had a lien as against Rose on the lot mentioned in block “W” for the dwelling erected thereon to the extent oí $832.19, as it is conceded that Sigsbee built the dwelling for Rose oh that lot, and that the sum mentioned was due for the building thereof. Every essential allegation to create a lien under the act of 1885 in favor of Sigsbee on the lot mentioned is contained in the bill and expressly admitted by Rose. Independent of the filing of any lien in the clerk’s office, Sigsbee would have a lien under the facts stated and admitted.
There is no contention here on the part of counsel for appellant that the lien in favor of Sigsbee was not assignable, or that the paper filed in the clerk’s office of Orange county as a builder’s lien, and assigned by appellees, did not in law invest them with the same rights that Sigsbee had under it, and so far as the assignments of error and argument of counsel here go, the case might be ended; but on the’record before us, and independent of the special objections referred to, one 'member of the court entertains the view that the decree against appellant can not be maintained, for the reason that appellees are shown to be assignees of the lien only as distinct from the claim upon which it is based, and as such they can not maintain the suit.
The object of the present suit, as against A. J. Rose, is to have a mechanics’ lien, claimed to exist in favor of one Sigsbee, and assigned by him to appellees, enforced as against a lot of land and a dwelling house situated thereon, owned by Rose, and described as beginning at a post on Mabbett street in Kissimmee City 120 feet west of the south-east corner of block ‘ ‘W’ ’ of H. A. Mathews’ addition to said town, and running west 52-$ feet, thence north 295 feet, thence east 52£ feet, thence south 295 feet to the place of beginning. The bill alleges that under a contract with Rose, and for him, Sigsbee erected a dwelling house on said lot, and that upon the completion of the building and its acceptance by Rose, he acknowledged that he owed Sigsbee $832.19, and drew for him a lien on said premises for work and labor done, and material furnished, in building the house, but by mistake Rose described the lot as being in block “M,” instead of'block “W,” as was the fact. The lien drawn by Rose and witnessed by him, and made a part of the bill, states that Sigsbee intends to hold and acquire under the law a lien against the property in block “M,” including the dwelling house of Rose, for work and labor done, and material furnished, in the building and erection of said house, to the amount of $832.19. This is the case made against Rose, and he expressly admits the allegations of the bill in reference thereto. As to James L. Clarkson, it is alleged that he claims to have some interests in said lot as mortgagee, but such interests, if any there be, accrued since and were subject to the
Rose has not appealed, and appellant had no right on his appeal to reverse a decree affecting glone his co-defendant’s interests. As was said in Witt vs. Baars, decided at this term, it is a fundamental principle in the administration of justice in all courts that all parties who are to be affected by the judgment of a court should be brought before it. Even in case of summons and severance, an appellant assigning errors will not be heard to complain of errors which are only prejudicial to parties who refuse to join in the assignment. Millsap vs. Stanley, 50 Ala. 319. In Fordyce vs. Shriver, 115 Ill. 530, 5 N. E. Rep. 87, it is said:
In view of the decree pro oonfesso against appellant, and his individual appeal, the only conclusion to be reached within the limits of the rules established in reference to such matters is, that the decree must be affirmed, and it is so ordered.