43 Fla. 376 | Fla. | 1901
(After stating the facts.)
The final decree rendered in this cause is far reaching in extent. It decreed, among' other things, the relief prayed by complainants, Kirlcby, Sedding and Burnsed in their bill, and that they all others holding liens in equal dignity with theirs have liens prior in dignity to all others on the mill, machinery, iron rails, locomotives, cars, log carts and 'Other machinery and implements used in operating the mill mentioned in the bill of complaint, and it was ordered that a special master named take an account of whqt was due complainants and all other creditors of the defendant, the East Florida Land and Produce Company, Limited, who should come in and prove their claims within a time specified, and that said master report to* the court the amounts due the several creditors and the order in which they are entitled to priority of payment from the proceeds of the sales of property mentioned in the bill of complaint; giving priority to complainants and others having labor liens equal in dignity with theirs under the laws of this State. Among the property mentioned in the bill is 350,000 feet of sawed lumber. It was also decreed that the cross-bill of complainant, the First National Bank of
From an examination of the pleadings in this cause and the evidence submitted it -appears that the interest of Middelton and Oliver is entirely separate from that of the First National Bank. They claim to have purchased the lumber on the mill yard of the East Florida Land and Produce Company and assert no claim to any ®ther property involved in the suit. The Bank’s claim extends to’ other property, and hence appellants have no unity of interest as to the subject-matter of the litigation.
Proceeding with the separate interests of appellants and the several assignments of error which they may urge for our consideration, we find an objection of Middleton & Oliver to the action of the court in overruling their demurrer to the bill of complaint. Under this assignment they contend that there is an improper joinder of parties complainant in the bill filed to enforce the separate liens of the three complainants. The demurrer of- said respondents was for the want of equity. Neither multi
The decree rendered in the cause against Middleton & Oliver is assigned bv them as error, and under this assignment it is contended, first, that complainants have no liens under the laws of this State for their respective demands. We are satisfied that complainants are given liens on the lands of the East Florida Land and Produce Company under section 1732 Revised Statutes which provides as follows: “1732. For labor as book-keeper, clerk, etc. — In favor of book-keepers, clerks, agents, porters, and other employes of merchants and transportation companies and other corporations; upon the stock, fixtures and other property of such merchants, companies or corporations.” Kirkby was employed as book-keeper at the mill, and Sedding was employed in keeping the time of other employes at the mill and attending to the commissary of the~company kept in connection therewith, and are entitled to liens on the lumber by the wery terms of the statute. Burnsed
The action of the court in directing the receiver to pay taxes due the State on personal and real estate of the East Florida Land and Produce Company out of funds in his hands derived from the sale of lumber and other personal property, is also assigned for error by Middleton & Oliver. The taxes in question were due for the year 1894, and by the fifteenth section of Chapter 4115 acts, approved June 2nd, 1893, it is provided that personal property shall be responsible for the taxes on real estate, and real estate shall be responsible for the taxes on per
These appellants also assign as error the order appointing the receiver, bufas this is also assigned as ■error b)»- the National Bank of St. Augustine, we will consider it in connection with the errors assigned by the latter.
One of the errors assigned by the National Bank of St. Augustine is that the court erred in decreeing that complainants have a lien prior in dignity to all others upon the mill, machinery, iron rails, locomotives, cars, log' carts and other machinery and implements used in operating the mill mentioned in the complainants’ bill. In its answer to the bill the bank claimed to be a mortgage creditor without notice of complainants’ liens, so far as the following property, and no other, was concerned, viz: the two locomotives, twelve railroad cars, ten log carts, and eight miles of railroad iron. The proof shows that this property all belonged to the East Florida Land and Produce Company, a corporation, and that it was all used in connection with the operation of the mill. The railroad iron was laid upon certain lands, presumably of the company, but the proof shows that it was not regarded as being- permanently fixed to the land, but only for temporary purposes, in procuring logs for the mill, and that such iron is
On the thirtieth of August, 1894, the managing agent for the company executed a written instrument authorizing the bank to take possession of and sell certain property embraced in its mortgages and apply the proceeds to the payment of said mortgage debts. This agent had no authority to do- this under his written power of attorney, and there is no evidence that the company ever ratified his act in this respect.
It is further contended by the bank that the court ’erred in decreeing a first lien’ upon. the property of the East Florida Land and Produce Company in favor of all persons holding liens of equal dignity with complainants, and in decreeing that the master should take an account of what was due all creditors of the company who should'
Another assignment of error on the part, of the bank complains of the dismissal of its cross-bill. This cross-bill sought the foreclosure of the four mortgages already referred to, and to have the foreclosure decree declare the lien of the mortgages superior to the liens of complainants upon the property embraced therein.
A decree pro confesso had been entered against the East Florida Land and Produce Company, the alleged mortgager, which entitled the bank to proceed to a decree against it foreclosing its mortgages, so far as that ccftnpany was concerned. As we have seen, however, none of these mortgages except the one dated September 27, 1890, were, as against the complainants entitled to priority over their liens. The court should, therefore, have retained the cross-bill, and in the decree of foreclosure of the mortgages adjudged the priorities between the bank and complainants as we have stated them to exist. The dismissal of the cross-bill was, therefore, erroneous.
The bank further assigns as error the part of the decree adjudging a lien in favor of complainants Kirkby, Sedding and Burnsed, on the land of the East Florida
It is further insisted on the part of the bank that the decree pro confesso against the East Florida Land and Produce Company, under the bill filed by Kirkby, Sedding and Burnsed, is erroneous because of defective service on said company. As stated, the Produce Company is not complaining in this court of anything that was done in the lower court, though it did appear there specially to quash the service against it. The entire record in reference to the service on the East Florida Land and Produce Company does not appear to- have been brought up on this appeal, but without reference to this, it does appear from recitals in the order appointing the receiver that all parties, complainants and defendants, then appeared before the court. It can not, therefore, be held that the East Florida Land and Produce Company was not properly before the Circuit Court.
The action of the court below in appointing a receiver for the property of the East Florida Land and Produce Company is assigned as error by each of- the appellants. The bill upon which this action was based alleged that the East Florida Land and Produce Company owned certain mill and railroad property, lumber and lands; that complainants held laborers’ liens upon the property for stated
Those portions of the decrees which have been pronounced erroneous in this opinion are, as against the appellants, reversed, and in other respects the decrees are affirmed, and the cause is remanded with directions for the court below to enter a decree in accordance with this opinion, to dispose of the matter of receivership according to law, and for such further proceedings as may be proper.