Strong v. Lake Weir Chautauqua & Lyceum Ass'n

25 Fla. 765 | Fla. | 1889

Maxwell, J. :

This appeal is fi-om an order dissolving an attachment taken out by appellant to enforce a lien on property of appellee under the act of 1885, “ to protect mechanics, laborers and material men, and to provide for the summary collection of moneys due them for wages or materials furnished.” The proceeding was commenced by a praecipe and the issuing of a summons in assumpsit, and, in connection therewith, an affidavit and bond for attachment. A writ of attachment was issued and levied on the property described in the affidavit as the property on which appellant claimed a lien. Appellee moved to dissolve the attachment, because of the insufficiency of both the affidavit and the bond to authorize it, the court sustained the motion, and we are called on to determine whether this was error.

The statute in its first section, so far as that is applicable to this case, provides “that- mechanics and all other persons performing labor or furnishing materials for the construction or repair of any building * * * shall have a lien, separately and jointly, upon the building * * they may have constructed or repaired, or upon any building * * for which they may have furnished material of any kind, an.d on the interest of the owner in the lot or land upon which such building may stand, to the extend of the value of any labor done or material furnished, or for both.” For the enforcement of the lien thus given the 9th section provides that “ the liens created by this, act shall be enforced by attachment obtained in manner provided by law, and the courts of this State shall always be open to hear and determine such cases, give final judgment, and issue execution immediately, to the end that there shall be no delay in the enforcement and collection of such claims.” Appellee insists that the attachment in this case was not so obtained, and that therefore it was properly dissolved. So far as the argument relates to any other law than the general attachment law, we do not deem it necessary to follow it. Clearly the reference in the words “ provided by law ” could not have been to any special proceeding in attachment prescribed for special cases, as, for instance, under our former statutes, cases of liens on ships or on agricultural crops, for if the proceeding in any special case had been in contemplation the act would have so declared. Nor, for the same reason, can the reference be to attachments authorized by sections four and five of the same act of 1885. The only sensible view is, that the reference is to the manner of obtaining an attachment under the general law on that subject. Not that the requirements of that law as to the subject-matter, or ground for the attachment, shall be observed in the affidavit, but that there shall be an affidavit setting forth the facts which create the lien, and the further fact that the amount claimed under it is due and unpaid. In other words, there must be an affidavit and bond as a basis for the attachment, as the general law requires, but the affidavit, instead of being limited to one or other of the grounds for an attachment under that law, must state the ground which under the act itself authorizes the attachment,.the act in effect giving a new and additional ground. Any other view would lead to defeat of the very object intended by the summary remedy given, for in most cases the lien-creditor could not make oath that his debtor is a non-resident, or is fraudulently disposing of his property, or removing it out of the State, &c., and it is not to be supposed that the Legislature meant any such futile requirement. We think the law on this subject is correctly expressed in Waples on Attachment, 111, as follows :

“ The term attachment is used in several lien laws; in those authorizing procedure in vindication of builders’ and mechanics’ liens, etc.; in statutes authorizing seizures by landlords for rent; but in all these attachments are in vindication of specific liens, and the suits are directed against specific property and are governed by principles applicable to them, though so different from those governing ordinary attachments that the suits must be treated as exceptional with respect to the affidavit.

“ In suits upon specific liens, it is not required that the plaintiffs should show that the defendants are non-residents, or absconders or concealers of property, or that ordinary process would prove unavailing. Such suits, though called attachment proceedings, are like those instituted to enforce mortgage liens, in which the essential allegations of the plaintiff are that the debt is owing and that it is secured by mortgage — not that the defendant is absent, absconded or non-resident. Such attachment suits are, in this respect, directly the opposite of those usually so designated and may therefore well be styled exceptional. * * * *

“ Another marked difference is that in the ordinary attachment suit, there is no description of the property to be attached required in the affidavit; and, indeed, none could therein usually be made, since the plaintiff does not then know what property of the defendant the sheriff will find; but, in attachments to enforce pre-existing liens, description is absolutely necessary.”

Hence, the remedy must be understood as relating to the “ manner ” of obtaining an attachment — that is, by appropriate affidavit and bond. The other incidents of the general law have no application. The proceeding is a statutory one, and no step can be taken unless distinctly and clearly authorized by the act.

Testing the affidavit by the rules of law we have laid down, we find that it sets forth the indebtedness of the Lake Weir Chautauqua and Lyceum Association to the plaintiff and that it is due ;.that it arose under contracts between the parties by which the plaintiff was to furnish material and construct for the Association certain buildings, describing them, and also describing the land on which they were. to be erected; and that he furnished the materials and constructed the buildings, and has a lien on the same and on said land to secure him in payment of the money due, with interest thereon, and reasonable attorney’s fees, and that he filed in the clerk’s office a notice of said lien which was recorded there. As to the objection to this affidavit, -that it is not drawn in accordance with the requirements in any special cases in which attachments were authorized at the time of the passage of the act of 1885, or in accordance with the requirements of section four, or section five, of that act, we have seen that the manner of obtaining attachments in those cases had no application to this case, and that the provisions of the general attachment law must govern; and as to the objection that the provisions of the general law in respect to the affidavits are not followed, we have seen that this is not necessary in all particulars, and that by adapting the affidavit to the facts which, under the act of 1885, authorize an attachment, it will be sufficient. We think the affidavit in this case, the substance of which is given above, states the essential facts which constitute the ground for an attachment under the act, and that the objection, to it was' properly overruled.

In regard to the sufficiency of the bond, the objection, besides that of a non-compliance with the sixth section of the act of 1885, which is not applicable, is, that it docs not appear therefrom that it is for an amount “ double the debt or sum demanded.” The statute does not require that the amount demanded should be stated in the bond, and while it would be more complete with such a statement, we do not perceive that it would be invalid, as not, complying with the statute, if it is in fact double what is demanded. It is given in connection with the affidavit, a necessary part of which is a statement of the amount demanded, and from that could be easily obtained the fact if needed to ascertain the sufficiency of the bond. The defendant could not be prejudiced by the absence from the bond of the statement in question, for if the bond could not come up to the requirement as to amount the fact is before him in the affidavit,, both being put on file together before the writ is issued, and before he can have occasion to consider the bond, and to-have it adjudged insufficient, in case it is so. The controlling idea is, that if the bond is really for the required amount it answers its purpose, there being nothing in the statute to-render it imperative that the test by which to judge of the sufficiency of the amount shall be incorporated in tile-bond.

. This conclusion is in harmony with the ruling in Branch vs. Branch, 6 Fla., 315, where informalities in the affidavit and bond in a case of replevin under the statute were held to be defects that should not invalidate the proceeding, because they were defects remedied by the fact that the matter required to appear in a particular paper did appear in other papers in the proceeding, all these papers being indispensably connected together. And this is quoted in West vs. Woolfolk, 21 Fla., 189, a case of attachment, as-authority for a similar ruling, the objection to the bond there, where the clerk was required to approve it, being that his approval did not appear on it in writing. The court held that as the statute did not reqnire the approval to be in writing, the fact that the clerk issued the writ, another paper in the proceeding, was sufficient evidence of his approval. So, iu the present case, we hold that the fact that the sum demanded appears in the affidavit, and the statute not requiring that it should appear in the bond, its non-appearance in the latter is no ground on which to condemn it as insufficient.

Against this conclusion is cited the case of Work & Son vs. Titus, 12 Fla., 628. That was a case of attachment where the person who acted in procuring it described himself in the affidavit as agent. The bond he gave was by himself in person, it nowhere appearing therein that he was acting as agent. The court held the bond insufficient and that the defect was not cured by what appeared in the affidavit, saying in the opinions that “ the bond is separate and independent of the affidavit, and must stand or fall upon its own merits.” It often happens that judges use language in their opinions which, while perfectly correct, applied to the case then in hand, is more far-reaching than discriminating law allows'. In the pressure or haste of work there is some excuse for this, but it is to be lamented as the source of much of the confusion charged to the law. The language just quoted seems to be an instance of this. If taken in its broadest sense, it leaves no room for distinction between essentials and non-essentials, as to which Waples (in his work on Attachment, 118) says, “ if there is strict compliance with the statute in essentials, and a substantial compliance with non-essentials, the attachment ought not to be quashed.” In that case the question was whether reference could be made to the affidavit to show that the person making it as agent also executed the bond as agent, though it did not purport to be so executed, and was in nowise ambiguous, or uncertain as to the character in which it was made. Clearly it was not permissible in such a case to look outside of the bond to see who was the party to it. The statute required that it should be given by the party applying for the attachment or by his agent or attorney, and the bond was entered into in the individual name of a person other than the applicant for attachment, without any indication of agency. This was non-compliance with the statute in matter of essential substance, and in that respect is to be distinguished from the case in 6th and 21st Fla., supra, and from the case at bar. Our view of the case is foreshadowed in the language of this court in its comment thereon in the case of Tanner and Delaney Engine Company vs. Hall & Mobley, 22 Fla., on page 403.

The order dissolving the attachment is reversed, and the ease will be remanded for further proceedings in accordance with this opinion.