44 Fla. 194 | Fla. | 1902
The appellant,, Joseph Hathorne, filed in the Circuit Court of Duval county his bill against the Panama Park Company, a corporation, and certain parties doing business as the Jacksonville Construction Company, to enforce a lien for labor and materials, upon certain real estate, the property of the Panama Park Company, v”' ' '
The bill alleged that the Jacksonville Construction Company had contracted with the Panama Park Company to put certain improvements upon its property, and that complainant had under contract between himself and the Construction Company performed a certain part of said contract in the year 1896, for which he claimed a lien upon the property in question.
The bill wasi demurred to by the Panama Park Company as being without equity, as depriving defendant of its right of trial by jury, as attempting to condemn its property not by due course of law, as being too vague in showing whether complainant claimted to be in privity with the owner, and as not clearly setting, forth which of the statutory liens was claimed.
The demurer was sustained, the decree rendered by the court further stating that a® there was no equity therein,
It does not distinctly appear from the decree upon what theory the court sustained the demurrer, but from a motion made here to advance the .cause because of. the- great interest and importance of having a determination by this court of the correctness of the ruling of the lower court in holding ¡section 1744 of the Revised Statute® to be in derogation of section 3 of the Declaration of Rights in the constitution, from the brief of counsel, and from the fact that without giving the complainant an opportunity to amend, the court dismissed bis bill, we infer, that the decree was based upon the ground that equity had no jurisdiction of the case as such jurisdiction would deprive the defendant of his right of trial by jury. We therefore discuss first that ground of the demurrer, i
Section 3 of the Declaration of Rights provides that “the right of trial by jury shall be secured to all and remain inviolate forever.” This, however, guarantees to the citizens a right of trial by jury only in those .oases where at the time of the adoption of the constitution, the law gave that right; and not in those cases where the right, and the remedy with it, are thereafter created by statute, nor where the cause was already the subject of equity jurisdiction. Lavey v. Doig, 25 Fla. 611, 6 South. Rep. 259; Hughes v. Hannah, 39 Fla. 365, 22 South. Rep. 613; Buckman v. State ex rel. Spencer, 34 Fla. 48, 15 South. Rep. 697; Wiggins v. Williams, 36 Fla. 637, 18 South. Rep. 859.
The statute under which this lien is claimed in section 1744 of the Revised Statutes expressly authorizes its enforcement by bill in equity or by proceedings at law. That statute creates .a new right unknown to the common
There is another respect, however, within the scope of the demurrer, wherein the bill is defective. The lien sought, to be enforced was that of a sub-contractor, one not in privity with the owner. In order that such lien be acquired by him, he mlust notify the owner of the property that he claims a lien thereon, and the lien which he acquires is limited by “the amount due by the owner to the contractor or other person for whom the work was done or the materials furnished.” Sec. ,1743 Rev. Stat. '
The bill alleges that “after the service of said notice on Panama Park Company, the said Panama Park Company paid ower to the Jacksonvillé Construction Company large' Sum® of money, and at one time $1,600, and that the Pan; ama Park Company still owed a further ¡sum to said JacEsonville Construction Company, the exact amount thereof being unknown to complainant.” It nowhere appears from' the bill that this indebtedness of the Panama Park Company to the construction Company was iii any wise
The foregoing opinion has been examined by the court and is hereby approved and adapted and ordered to be filed as the opinion of the court in said cause.