Nelson v. Selden Cypress Door Co.

78 Fla. 204 | Fla. | 1919

Per Curiam.

— The judgment herein was affirmed without opinion and an application for rehearing suggests “that the court overlooked the fact that the judgment allowed and gave attorneys’ fee for plaintiffs’ attorneys in the suit; that, under the law, attorneys’ fees are not recoverable in suits to foreclose mechanics’ liens.”

While the judgment awards attorneys’ fees to the amount of ten per cent, of .the recovery, no objection was made to this in any of the proceedings shown by the transcript. The illegality, if any, in the judgment because of the allowance of attorneys’ fees was not questioned, and consequently the point was waived. As the question of attorneys’ fees was not presented for determination when the case was heard on its merits, such question cannot now be presented, on an application for rehearing, as a matter overlooked by the court in affirming the judgment.

No opinion is now suggested as to the validity of the award for attorneys’ fees in cases of this character under Section 2218, General Statutes, 1906, Compiled Laws, 1914. See Phillips v. Atwell, 76 Fla. 480, 80 South. Rep. 180; Union Terminal Co. v. Turner Construction Co., 247 Fed. Rep. 727. See also Missouri, Kansas & Texas Ry. Co. of Texas v. Harris, 234 U. S. 412, 58 L. Ed. 1377, 34 Sup. Ct. Rep. 790, L. R. A. (N. S.) 1915E 942 and Notes, Page 947; Dell v. Marvin, 41 Fla. 221, 26 South. Rep. 188, C. M. & St. P. v. Polt, 232 U. S. 165; St. L. I. M. & S. v. Wynne, 224 U. S. 354; A. T. & S. F. Ry. v. Vosburg, 238 U. S. 56.

Rehearing denied.

All concur.