Fulghum v. Deno and Deno

146 So. 672, 108 Fla. 594, 1933 Fla. LEXIS 1518

• Court: Supreme Court of Florida
• Decided: March 7, 1933
• Status: Published

Opinions

Buford, J.

In this case the plaintiff in error filed suit on May 12, 1927, to subject a married woman’s separate property to the payment for labor and material furnished by the complainant under a contract with the married woman on and before November 3, 1925.

The, court below dismissed the bill of complaint on several grounds. Amongst others was the following:

“That this suit was not instituted within the time prescribed by Section 4551 of the Compiled General Laws of 1927, for the bringing of suits to enforce the rights of parties performing labor upon or furnishing materials used in or upon the separate statutory property of a married woman, and while the bill seeks to excuse the delay in instituting this suit by alleging that complainant did not know that the defendant was a married woman until on or about the month of April, 1926, when! a Plea in Abatement was filed in a Common Law Action brought against the defendant, yet the complainant, by his own testimony, in answer to direct interrogatory No. 2, shows that he had knowledge of the fact that defendant was a married woman in October, 1925, and said allegations of the bill are also contradicted by complainant’s answer to cross interrogatory No. 18.”

This was a sufficient ground upon which to base the order dismissing the bill under the law as contracted by this' Court in the case of Pierson v. Rinehardt, opinion filed April 14, 1931, reported in 133 Sou. 553; also 136 Sou. 251. Solomon v. Galinsky, filed November 4, 1931, reported in 137 Sou 386.

In the latter case some effort had been made to comply with the statute in regard to the filing of the notice, but the notice did not comply with the requirements of Section 2854 R. G. S., 4551 C. G. L., and in that case the Court re-affirmed what was said in Pierson v. Rinehardt, supra, that is:

“The above mentioned provisions of the statute are not in conflict with the organic law, but provide a definite method for the application of the organic law in such cases.”

In the case of Solomon v. Galinsky, supra, there was no question of intervening purchasers or creditors. The suit was between the material man and the married woman owner of the property, which conditions also obtain in the case at bar.

Whether or not the provisions of the statute here involved are wise and salutary is a matter for legislative determination and is a question which the courts are not called upon to determine. The Legislature by the Act above referred tq has fixed the period of time within which suit must be instituted and has prescribed the procedure which must be followed by material men when seeking to charge the separate property of a married woman with the payment for labor and materials furnished upon the property sought to be subjected thereto. Pierson v. Rinehardt, supra.

For the reasons stated, the decree should be affirmed and it is so ordered.

Affirmed.

Davis, C. J., Whitfield and Terrell, J. J., concur.

Brown, J., dissents.