61 Fla. 782 | Fla. | 1911
Special Tax School District No. 1 of Palm Beach County, Florida, and Guy I. Metcalf, H. C. Hood and Samuel S. Gibson as trustees of Special Tax District No. 1, filed an amended bill of complaint on July 8th, 1909, in the circuit court of Palm Beach county against C. D. Smith and T. J. Grier, copartners as Smith & Grier, and Ellen E. Potter, all of the town of West Palm Beach in the county of Palm Beach, and the Dade County State Bank, a corporation having its principal place of business in the county of Palm Beach, Florida, alleging, first, that complainants are a corporation for the purpose of maintaining and supervising public schools within the territory named as Special Tax School District No. 1 in Palm Beach county, Florida, which district comprises the city of West Palm Beach and the territory immediately adjacent thereto; second, the partnership of Smith and
The foregoing is a synopsis of the amended bill. This amended bill was subsequently amended, in what particulars we are unable to discover. The amended bill as amended was demurred to by Ellen E. Potter and the demurrer was overruled. Smith & Grier answered the amended bill denying the authority of the Board of Public Instruction to bring this suit. They admit the contract with Special Tax School District No. 1 approved by the Board of Public Instruction of Dade county to erect the school building on certain land, but we are not advised whether the description thereof in the bill is correct or not. They aver on information and belief that the title to the land on. which the school building has been erected is not in the complainant, but allege the deeds are in escrow with the Dade County State Bank to be delivered on certain conditions which have not been met by the complainants. They admit that the building has been completed in substantial accordance with plans and specifications. The answer then alleges that the contract provided for an arbitration of disputes, and that disputes arose and arbitrators fixed $1364.33 as the amount due them for extra work and material, the amount to be deposited for work omitted to be $225.00 making the net increase $1139.33. The answer at considerable length goes into the questions growing out of the disputes between the parties. They deny that they have conspired with the Dade County State Bank as alleged in the bill. They admit that complainants have attempted to take possession of the school building, and allege complainants have committed trespass in said connection, but allege that they have been in possession of the school building while it was in process of construction and that they have retained ' possession of it since it was furnished and refuse to yield
The bill was answered by Ellen E. Potter. After various proceedings the defendants Smith & Grier on the 9th day of July, 1909, filed a cross-bill against Special School District No. 1, a corporation under the laws of Florida, with Guy I. Metcalf, H. 0. Hood and Samuel S. Gibson as its trustees, the Dade County State Bank, a corporation, Ellen E. Potter and the Board of Public Instruction of Dade County and of Palm Beach _ County, alleging that they have answered the bill of complaint against them and the Dade County State Bank for an injunction and specific performance of the contract, showing that complainants are not entitled to the relief prayed or any relief. The contract in writing of January 31st, 1907, made by Smith & Grier with Special School Tax District No. 1 and its trustees, then being in Dade county, but now being in the new county of Palm Beach is alleged as having been approved by the Board of Public Instruction of Dade County.
The cross-bill then proceeds at length to state the details of the contract; that changes and additions therein and thereto were made, that disputes arose as to the amount to be paid for extra work, and as to deduction, that the matters in dispute were submitted to arbitration as provided in the contract, and that the arbitrators awarded the amount of $1364.33 for extra work, and allowed the trustees $225.00 for work and material omitted. The bill then goes into a detailed statement of the items of their account showing a balance due Smith & Grier of $11686.41.
The cross-bill alleges that upon commencement of the work orators took exclusive possession of the land and building, and have held possession up to the filing of the cross-bill.
It is argumentatively stated in the cross-bill, that the orators right of possession was recognized in the written contract wherein it was agreed that if orators should fail to comply with said contract and to erect said building, or to complete the same, the said trustees should thereupon have a right to enter upon and take possession of said premises, but in no other case was it stipulated that the trustees should have possession of said premises except by
Orators allege that they substantially completed said building in accordance with the contract, the supervising-architect having certified to that effect, and they have offered to turn over said building to said Special Tax School District No. 1 upon the completion of the payments therefor but that said trustees of said District have neglected and refused to pay the balance due for said building and have sought by fraud and force to acquire possession of said building without paying therefor, and in pursuit of said object the said trustees have hired agents to invade said premises, and to break into and enter same contrary to law, and are threatening to forcibly possess themselves of said premises, and have applied to the court in the original bill for assistance in procuring possession &c.
The cross-bill alleges futile attempts to settle with the trustees — that said School Tax District is a corporation with power to sue and be sued, that orators have a lien superior in dignity to all others upon the school building they have erected for said corporation for the balance due under said contract and a right to withhold possession of said building for three months after its completion by the architect as completed to enforce the payment of the balance due, and that the County Board of Public Instruction is the only body that can claim title or right of possession of said property.
The cross-bill prays for a full answer, but not under oath, that the said Special School Tax District, through said trustees may be required to pay to orators the amount due them as fixed by the agreements and by the award of the arbitrators, and that until such payment shall be made, that said District and Trustees, their agents, serv
The Special School Tax District, through its trustees demurred to the cross-bill on the grounds among others, that no lien exists on public school property in favor of a contractor under the laws of Florida.
This demurrer was overruled. The cross-bill was answered by the defendant’s corporation, issues joined, a master appointed and a quantity of testimony taken and reported, hearing upon the disputes of the parties as to the manner in which the work was done, on the school building, the amount due the contractors, and other matters swelling the record into nearly seven hundred pages. •
There was a supplemental cross-bill filed which we are unable to find in the record, but presume from the proceedings that it contained a prayer for an accounting.
On final hearing, a decree was entered in favor of the complainants on the original bill perpetually enjoining Smith & Grier from interfering with them in the use of the school building, ordering Ellen E. Potter to deliver deeds to said complainants of the land upon which the school building stood, fixing the amount due Smith & Grier, and directing the payment within ten days from the entry of the decree — fixing the amount due from the Board of Public Instruction of Dade county, Florida, to complainant corporation, the Special School Tax District No. 1 of Palm Beach County, and some other matters of accounting — and retaining the bill and its_ amendments, the cross-bill and other papers in the suit for the purpose
From this decree, the Special School Tax District and its trustees appealed to this court.
It seems to us that the right of Smith & Grier to file the cross-bill in this suit, depends upon their contention that they had a lien under the laws of Florida upon the school building and lot to secure the balance which they claimed to be due them.
The complainants in the original bill did not pray for an accounting. They did set up that there was a dispute with the contractors Smith & Grier, but it seems that this was done to explain the contention which had arisen as to complainants right to use the school building for school purposes at the ensuing school term.
The purpose of the bill of complaint was to secure the peaceable use of the building for such purposes. It is alleged in the bill, admitted in the answer of Smith & Grier and alleged in their cross-bill, that the school building was practically completed, and had been so certified by the architect, but Smith & Grier were holding on to the building to secure a settlement with the trustees of various more or less complicated matters growing out of the erection of the building.
Complainants in their cross-hill and briefs strenuously contend that they had such a lien, and therefore that they had a right to a full accounting, which accounting required the introduction of new parties in the cross-bill.
It is not centended here by complainants in the cross-bill that we have any statute in Florida expressly giving a lien upon a public school building or the lot on which it stands to a contractor or one who has furnished materials (See sections 2190 et seq. General Statutes of 1906)
The case of the Board of Education of the State of Illinois v. Greenbaum, 39 Ill., 609, is relied upon. It is held in this case that the property of the Normal University created under the laws of that State for educational purposes, was the property of the Board of Education of the State of Illinois, as a corporation, and was subject to the claim of a creditor under the law providing for the enforcement of a mechanic’s lien.
The conclusion seems to be based on the proposition that the property was held in part by the State and in part by individuals and was a private corporation. See the subsequent cases of Thomas v. Industrial University, 71 Ill., 310, and the Board of Education of District No. 3 v. Neidenberger, 78, Ill., 58.
In this last case it is distinctly held that a mechanic’s lien in the absence of a statute expressly , giving such a lien, does not attach against property held for public school purposes — such we think is the prevailing law in the United States. See Boisot on Mechanics’ Liens, section 208; Lessard v. Town Inhabitants of Revere, 171 Mass., 294, 50 N. E. Rep., 533; Morganton Hardware Co. et al. v. Morganton Graded School et al., 150 N. C. 680, 17 Ann. Cas., 130. It was held by this court in Ledwith v. City of Jacksonville, 32 Fla., 1, 13 South. Rep., 454, that a cross bill is one brought by a defendant in a suit against complainant in the same suit, or against other defendants in the same suit, or against both, touching the matters in question in the original bill and is considered as an auxiliary suit or a dependency upon the original bill, and can be sustained only on matters growing out of the original bill, such cross bill may set up new matter arising subsequently, but still it must constitute part of the
In Van Zile Eqr. Pl. & Pr., section 212, it is said: “A cross-bill is brought by a defendant in a suit against the plaintiff in the same suit, or against other defendants in the same suit, or against both, touching the matters in question in the original bill. It is brought either to obtain a discovery of facts, in aid of the defense to the original bill, or to obtain full and complete relief to all parties as to the matters charged in the original bill.
It should not introduce new and distinct matters not embraced in the original bill, as they cannot be properly examined in that suit, but constitute the' subject matter of an original independent suit. The cross-bill is auxiliary to the proceeding in the original suit, and a dependency upon it.”
Becurring again to.the original bill, we observe that it contained no prayer for an accounting. Its purpose, so far as Smith & Grier were concerned, was to secure the
The final decree does not give them a lien upon the building and land to secure what they claimed to be due them. Under the circumstances it seems to us that the School Tax District and its trustees were entitled to the possession of the school building without regard to the question of their possible indebtedness to Smith & Grier. No accounting was necessary to determine this question— and such an accounting we think should not have been brought into the controversy by cross-bill, the result of •which was to unnecessarily increase the costs to the complainants in the original bill and to delay the termination of a suit, which should have been speedily settled, as it involved the use of a public school building. The disputed matters of accounting should have been the subject of independent proceedings.
We think the court erred in overruling the demurrer to the cross-bill.
The decree below is affirmed so far as it finds in favor of the original complainant’s right to the undisturbed possession of the school building and land on which it stands, but is reversed as to all matters based on the cross-bill with directions to dismiss the cross-bill. The cost of this appeal to be paid by the defendants Smith & Grier.