Clarkson v. Louderback, Gilbert & Co.

36 Fla. 660

• Court: Supreme Court of Florida
• Decided: June 15, 1895
• Status: Published

Opinion

Mabry, C. J.:

James L. Clarkson alone has appealed in this case, but as the final decree as to him only adjudges his separate lien, if he has any, on the property involved in the suit to be subordinate to that of appellees, we may consider the decree as not being so joint as to necessities the joinder in the appeal on the part of A. J. Eose. As the 'latter has not appealed, neither the sufficiency of his demurrer to the bill, nor any other question affecting his rights and interests, is involved here. Decree pro confesso was entered against James L. Clarkson, and appellees were entitled to such final decree against him as their bill warranted. An appeal may be taken after a final decree based upon a ■default has been entered, and the rule is that upon such an appeal the legality of all proceedings prior to the default is open for review, and advantage may be taken of reversible errors apparent upon such proceedings. After default regularly taken the proceedings are ex parte, and the defendant can not object to mere irregularities therein, but while this is so, the final decree in the case must be proper and such as the complainant is entitled to take on his bill. Hart vs. Stribling, 21 Fla. 136; Garvin vs. Watkins, 29 Fla. 151, 10 South. Rep. 818; Lenfesty vs. Coe, 34 Fla. 363, 16 South. Rep. 277. It is not claimed, nor does it appear, that there was any irregularity in the proceedings up to the entry of default against appellant. The record shows that the decree pro confesso was duly entered against him.

The first assignment of error is, that the court erred in entering the final decree without proof of the allegations of the bill. Ho proof was necessary to sustain any of the allegations of'the bill, even against A. J. Rose, for the reason that he expressly admitted every one to be true, except one, and that was not denied, and as to appellant, all the allegations were adjudged to be true by the decree pro confesso. The testimony of any number of witnesses sustaining the allegations of the bill would not have made it more conclusive against him. So, there can be no merit in the assignment that the court erred in entering the decree without proof of the allegations of the bill. .

The third assignment of error may be briefly disposed of in this connection. The brief of counsel for appellant does not point out any error of the court in the ruling on the application for a rehearing, and under the rule we might omit any reference to this ruling. The same status of the case existed on the rehearing as when the first decree was rendered. Appellant was under default, and, in fact, when the rehearing was applied for the time for opening the default had expired, and it could not then have been opened if an application for that purpose had been made. Two of the grounds alleged for a rehearing embraced new matter, which, if available to appellant for any purpose, should have been urged in proper time to open the default or as a defense in an answer; and the third one is the same as the first assignment of error, that the decree was entered against appellant without any evidence to sustain the bill. No proof was necessary to sustain the averments of the bill, as they were confessed and established by the decree pro confesso.

The second and only other assignment of error is, that the court erred in decreeing that a mechanic’s lien could be corrected by bill in equity after the time for filing the lien had expired by law. This assignment of error and the argument of counsel in support, thereof are based upon the erroneous view that the-case is governed by the act of 1887, Chapter 3747. The act of 1885 (Chapter 3611) is the one that was in force when the lien claimed attached. By this act mechanics and all other persons performing labor upon, or furnishing materials for the construction or repair of, any building were given a lien separately and jointly upon such building and the interest of the owner in the lot or land upon which the building stood, to the extent of the value of any labor done or material furnished, or for botli, and no lien or notice of lien was required to be filed in any office. Under the prior law it was necessary, in order to acquire a lien in favor of mechanics, that notice should be filed in the office of the Clerk of the Circuit Court, within sixty days after the completion of the building, of an intention to hold a lien on the property, stating the amount of the claim and a description of the property on which the lien was claimed (McClellan’s Digest, secs. 1, 4, pp. 721, 722), but no such notice of lien was required by the act of 1885. Barbour vs. Van Camp, 26 Fla. 40, 7 South. Rep. 162; Nutt vs. Codington, 34 Fla. 77, 15 South. Rep. 667.

Under the allegations of the bill before us there can be no doubt that Sigsbee had a lien as against Rose on the lot mentioned in block “W” for the dwelling erected thereon to the extent oí $832.19, as it is conceded that Sigsbee built the dwelling for Rose oh that lot, and that the sum mentioned was due for the building thereof. Every essential allegation to create a lien under the act of 1885 in favor of Sigsbee on the lot mentioned is contained in the bill and expressly admitted by Rose. Independent of the filing of any lien in the clerk’s office, Sigsbee would have a lien under the facts stated and admitted.

There is no contention here on the part of counsel for appellant that the lien in favor of Sigsbee was not assignable, or that the paper filed in the clerk’s office of Orange county as a builder’s lien, and assigned by appellees, did not in law invest them with the same rights that Sigsbee had under it, and so far as the assignments of error and argument of counsel here go, the case might be ended; but on the’record before us, and independent of the special objections referred to, one 'member of the court entertains the view that the decree against appellant can not be maintained, for the reason that appellees are shown to be assignees of the lien only as distinct from the claim upon which it is based, and as such they can not maintain the suit. Some authorities hold that a lien given by statute in favor of mechanics is a personal right, and can. not be assigned. This view seems to have been entertained somewhat from the fact that at common law a lien was not the proper subject of an assignment. We do not believe that this is the correct view as applied to the liens given by statute like ours of 1885. Such liens did not exist at the common law, and they owe their origin entirely to the statute. There is nothing in our statute of 1885 prohibiting the assignment of the liens thereby created, and its manifest purpose was to afford an effective and speedy remedy for the protection of mechanics and all other persons performing labor upon or furnishing materials for the construction of buildings. This purpose is better subserved by giving such liens the character of assignability, as otherwise their value as security for labor or materials furnished would be lessened, or reduced below the dignity of other contractual claims justly due. It is stated in the 15th volume of Am. & Eng. Ency. of Law, page 102, title “assignment of lien,” that “the rule relating to the assignability of mechanics’ liens is not well established. The weight of authority, however, is in favor of the assignability of the lien of a mechanic, and the right of his assignee to assert his claim in the same manner and to the same extent that the mechanic could.” The authorities holding that such liens are assignable are based, in our judgment, upon sounder reasoning, and we adopt their view. Among them are the following: Skyrme vs. Occidental Mill and Mining Co., 8 Nev. 219; Mason vs. Germaine, 1 Montana, 263; Davis vs. Bilsland, 18 Wall. 659; Iaege vs. Bossieux, 15 Gratt. 83, S. C. 76 Am. Dec. 189; Kerr vs. Moore, 54 Miss. 286; Tuttle vs. Howe, 14 Minn. 145, S. C. 100 Am Dec. 205. It is also true, as stated in Skyrme vs. Oc cidental Mill and Mining Co., supra, that “no particular words are necessary to constitute an assignment of a debt. If the intent of ■ the parties to effect an assignment be clearly established, that is sufficient.’ Phillips on Mechanics’ Liens (3d ed.), 55 (a).

The object of the present suit, as against A. J. Rose, is to have a mechanics’ lien, claimed to exist in favor of one Sigsbee, and assigned by him to appellees, enforced as against a lot of land and a dwelling house situated thereon, owned by Rose, and described as beginning at a post on Mabbett street in Kissimmee City 120 feet west of the south-east corner of block ‘ ‘W’ ’ of H. A. Mathews’ addition to said town, and running west 52-$ feet, thence north 295 feet, thence east 52£ feet, thence south 295 feet to the place of beginning. The bill alleges that under a contract with Rose, and for him, Sigsbee erected a dwelling house on said lot, and that upon the completion of the building and its acceptance by Rose, he acknowledged that he owed Sigsbee $832.19, and drew for him a lien on said premises for work and labor done, and material furnished, in building the house, but by mistake Rose described the lot as being in block “M,” instead of'block “W,” as was the fact. The lien drawn by Rose and witnessed by him, and made a part of the bill, states that Sigsbee intends to hold and acquire under the law a lien against the property in block “M,” including the dwelling house of Rose, for work and labor done, and material furnished, in the building and erection of said house, to the amount of $832.19. This is the case made against Rose, and he expressly admits the allegations of the bill in reference thereto. As to James L. Clarkson, it is alleged that he claims to have some interests in said lot as mortgagee, but such interests, if any there be, accrued since and were subject to the lien in favor of Sigsbee, and assigned to appellees; that said mortgages bear date December 15th, 1886, and were recorded on the 11th of the following month, and one bore date February 9th, 1887, and was filed for record on the 17th of that month; whereas, the lien in * favor of Sigsbee attached on the 9th of December, 1886, and Clarkson had full knowledge that Sigsbee was con: structing a dwelling for Rose on th.£ premises sought to be subjected to the said lien. The case against Clarkson is, that he was the holder of a subsequent and subordinate lien on said lot, and the allegations against him are established by the decree pro confesso. It was held in Maynard vs. Ivey, 21 Nev. 241, 29 Pac. Rep. 1090, that a “statement claiming a mechanic’s lien is sufficient which describes the property sought to be charged, gives the-name of the owner, the names of the persons by whom claimant was employed, and the total amount due after deducting all credits and offsetts.” It is evident that it was the purpose of both Sigsbee and Rose to perfect and fix a lien to the extent of $832.19 on the dwelling and lot on which it stood, for the labor and material in erecting the house, and it is also evident that they designed to perfect the lien in compliance with the law existing prior to the passage of the act of 1885, else they would not have prepared and filed a written notice as required by that law. The written notice, or builder’s lien as it is called in the assignment, states the amount of the claim and a description of the property, and while there was at the time no statutory direction that such notice should be given in order to secure a lien, it does embody a statement of a claim for work and and material in erecting the house, and also of an intention to hold a lien on the same and lot to the extent of $832.19. The lien notice, as stated, was written by Rose and attested by him, and in his answer he admits that he owed the amount therein expressed, and wrote the notice for the purpose of securing a lien on the property in favor of Sigsbee. This written notice of lien for the amount stated was assigned by Sigsbee to appellees, and it is evident that the former’s purpose was to invest the latter with all rights and interests which he had acquired under the notice. Any other construction of the assignment would do violence to its evident intent and object. As stated by the authorities, no particular words are essential to constitute an assignment of a debt, and it is only necessary that the intent of the parties, to accomplish such object, should clearly appear. If the question was open to us, in this case, it would be putting too narrow a construction on the notice or paper mentioned, as between Sigsbee and Rose, to hold that it did not sufficiently evidence á lien claim in favor of the former, and which he could enforce in his name; but the establishment of a lien against Rose and his property, as well as the assignment of the lien to appellees, is not open to us on this record.

Rose has not appealed, and appellant had no right on his appeal to reverse a decree affecting glone his co-defendant’s interests. As was said in Witt vs. Baars, decided at this term, it is a fundamental principle in the administration of justice in all courts that all parties who are to be affected by the judgment of a court should be brought before it. Even in case of summons and severance, an appellant assigning errors will not be heard to complain of errors which are only prejudicial to parties who refuse to join in the assignment. Millsap vs. Stanley, 50 Ala. 319. In Fordyce vs. Shriver, 115 Ill. 530, 5 N. E. Rep. 87, it is said: “Whether there was error in the rendition of the decree against I. B. Santee Cone of the defendants below) is not directly before us as to him, as he has not appealed, prosecuted a writ of error, or assigned cross-errors upon the record. For the same reason we need not notice the observations of his counsel, that he was not a partner in this firm. It is admitted, however, in his answer that he was, and that can not be controverted now.” The difficulty in the way of appellant is that he permitted the bill to be taken as confessed as to him, and under such default he stands as a party holding a subordinate lien on the property in question and can not be allowed under such default, and on his separate appeal, to question the decree obtained by appellees against Eose and his property. As against appellant there was no illegality or irregularity in adjudging, on his default, that his interests, if he had any, were subordinate to the rights of appellees established by the decree against Eose.

In view of the decree pro oonfesso against appellant, and his individual appeal, the only conclusion to be reached within the limits of the rules established in reference to such matters is, that the decree must be affirmed, and it is so ordered.

Me. Justice Liddow dissents.