Martin v. Rother

113 So. 713 | Fla. | 1927

Lead Opinion

This was a suit in equity by a material man against the owner to enforce an alleged material man's lien against the real estate and buildings erected thereon, as described in the bill of complaint. It does not appear that the heirs of John H. Havlin were necessary parties to the suit. Title to the land might have been in the executrix of John H. Havlin.

Decree was in favor of the complainant for the sum of $442.54 principal, $95.70 interest, and $53.82 as fee for Complainant's Solicitor.

The record discloses no reversible error except that committed by the Chancellor in entering the decree for solicitor's fees.

That part of the decree allowing fees for complainant's solicitor should be reversed upon authority of the opinion in the case of Palm Beach Bank Trust Company v. Lainhart et al.,84 Fla. 662; and Crim et al. v. Drake, 86 Fla. 470 and cases there cited, and should otherwise be affirmed. Chapter 9323, Acts of 1923, does not cure the unconstitutionality of Section 3525, Revised General Statutes. The cost of this appeal should be taxed against the Complainant, the Appellee here, and it is so ordered.

Reversed in part.

WHITFIELD, P. J., AND TERRELL AND BUFORD, J. J., concur.

ELLIS, C. J., AND STRUM AND BROWN, J. J., concur in the opinion.

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Concurrence Opinion

The basis of classification involved in Chapter 9323, Laws of Florida, Acts of 1923, is distinguishable from that involved in the Texas statute construed and held valid in M. K. T. Ry. Co. v. Cade, 233 U.S. 642; 58 L. Ed. 1135, both as to the classes of debtors affected and as to the amount contemplated and the latter being recognized as an element properly considered in determining the reasonableness of a classification. S. A. L. Ry. v. Seegers, 207 U.S. 73.