W. R. Emerson & Co., Appellants, vs. J. C. Gainey Appellee, 26 Fla. 133

Mitchell, J.: Gainey, the appellee, commenced suit in the Circuit Court for the enforcement of a lien under the mechanic’s lien law of June 3, 1887,

Chapter 3747 Laws of Florida. The prcecipe for summons ad respondendum was filed April 17, 1888. The writ was made returnable instanter, and it was issued, executed and returned the same day. And on the same day the plaintiff filed his affidavit, which, under the statute, is the declaration in such proceedings. On the 19th day of the same month, the Circuit Court being put in motion by the action of the plaintiff in filing the prcecipe, and the issuing and execution of the writ, a jury was summoned, we assume from bystanders, and the cause was then ready for trial.

At this stage the defendants, by counsel, entered a special appearance, for the purpose of moving to quash the proceedings. The motion was refused, and the defendants then, by permission of the Court, filed their pleas; the plaintiff joined issue thereon, and afterwards by permission of the Court, amended his pleadings; the cause then proceeded to trial on said 19th day of April, and resulted in a verdict in favor of the plaintiff. The defendants moved for a new trial and in arrest of judgment, which motions were overruled, and the defendants appealed, and have assigned the following errors: i.

The Court below erred in overruling defendant’s motion for new trial; 2. In overruling defendant’s 'motion in drrest of judgment; 3. In rendering judgment for attorney’s fees for plaintiff. The grounds of the motion for new trial are, that the verdict was against the evidence and the charge of the Court, but there is nothing in the record to show what the evidence or the charge of the Court was, and consequently we can consider no question sought to be raised by the motion.

The first ground of the motion for the arrest of the judgment is, that “the plaintiff by his affidavit to enforce the lien claimed, does not describe and sufficiently locate the property upon which he claims a lien for work.” The first

section of the above act provides: “That mechanics, laborers and all other persons who shall perform any labor upon or in the construction of any building, or other work or structure, shall have a lien of superior dignity to all others upon the building, work or structure upon which they may have worked in the construction or repair thereo'f, and also upon the interest of the owner in the lot or land upon which such building, work or structure stands, to the extent of the value of any labor done by them.” * * The plaintiff claimed a lien upon a steam saw mill, the property of the defendants, located at a place or town called Emerson, on the Savannah, Florida and Western Railroad, fourteen miles south of Live Oak, in the County of Suwannee, and State of Florida, but claimed no lien upon the land upon which the mill was located, and hence, in our opinion, it was not necessary for the affidavit to describe the land or lot upon which the mill stood by metes and bounds, but it would have been otherwise had he claimed a lien upon the land as well as the building.

The second ground of the motion for the arrest of the judgment is, “because the affidavit of.said plaintiff does not allege and set forth in an issuable form the amount claimed, the kind of work done, and what property to which the lien claimed attaches.” Now, the affidavit, it is true, might have been more specific as to the property upon which the lien was claimed, but there is nothing in the case to show that the defendants before going to trial, in fact before judgment, raised any objection as to the affidavit, and in the absence of such objection at the proper time, we cannot consider the question as to its sufficiency.

The record does, however, show that before going to trial defendants moved to quash the proceedings, or rather, that they entered a special appearance for the purpose of making such motion, but the record is silent as to whether or not the motion was made, but if made, there is nothing to show the grounds of the motion, and in the absence of such showing, upon the ground that every fair intendment is in favor of the correctness of thd ruling of the Court, we assume that the grounds of the motion to quash—if any— were not tenable.

The third ground of the motion for the arrest of the judgment is, “because said plaintiff by his affidavit sets up claims for the use of his tools as part of his compensation, and for which a lien is claimed.” As to whether the plaintiff received any pay for the use of his tools or not, we are not able to learn from the record, but it may be safely assumed, we think, that no error was committed in reference to any pay the plaintiff may or may not have received for the use of his tools. If, however, there was error in this respect the defendants have failed to point it out.

The fourth ground of the motion for the arrest of the judgment is, “because plaintiff seeks‘in an equitable proceeding to enforce a common law right;” the fifth is^ “ because the plaintiff seeks an equitable right in a Court of common law; ” the sixth is, “ because this Court cannot render a judgment for which plaintiff seeks by his said affidavit.” These several grounds may be considered together, as they practically raised but one and the same question, and in considering this question we do not agree with counsel for the defendants.

The mode of procedure prescribed by the Legislature for the enforcement of the mechanic’s lien law is a purely legal proceeding, and confers no equity powers upon the trial Court in such cases, and is, therefore, free from the objectionable features insisted upon by the defendants.

The seventh ground of the motion for the arrest of the judgment is, “ because the law under which the plaintiff seeks to enforce his lien is unconstitutional, in this, that it attempts to confer upon a Court of common law jurisdiction, the powers of a Court of equity.” The act under consideration, as before stated, confers no such power as contended for by defendants, and hence their contention as to the act being unconstitutional for the reasons insisted upon, is not tenable.

And what we have said as to the seventh ground of the motion applies also to the eighth, because it seeks to raise the same question that is raised by the seventh ground. The ninth and last ground of the motion is, that the plaintiff did not commence his action within the time prescribed by the statute, but this ground is not well taken, because the record shows clearly that the suit was commenced in six months (the time prescribed by the statute for bringing the suit) after the completion of the work by . the plaintiff for the defendants.

It is insisted that the Court below erred in not quashing the proceedings on the ground of variance between the prcecipe, affidavit and writ. In Robinson vs. Hartridge, 13 Fla., 501, the Court say: “ Having disposed of these objections, we reach the errors assigned in this case. The first is, the Court erred in giving judgment upon the verdict of the jury, the declaration being in trover and the writ in assumpsit, and that the declaration is defective for want of material allegations.

The defendant in the Court below, without making any objection to this total variance between the writ and declaration, pleads to the changed form of action, goes to trial, and this objection is made for the first time in this Court. The objection comes too late. * * * Under the provision of the act of November 23, 1828, (Thompson’s Dig., 351), ‘ after verdict, the judgment cannot be stayed or reversed ’ for this variance.

It is thus seen that this variance amounts to but little when urged in the Circuit Court before verdict, and amounts to nothing when urged after verdict, and that it is no ground for a reversal of the judgment.” In the suit at bar the case stood originally against the defendants as partners in the milling business, but the pracipe and writ were amended, and the case then stood against the defendants individually, describing them as late partners, etc., but this amendment was not carried into the affidavit which describes the defendants as partners, and this creates the variance complained of by the defendants.

There is nothing in the record to show that the defendants objected to this variance in the Court below, but even if they did, under the decision in 13 Fla., supra, there was no error in overruling the objection. This objection is not incorporated in the record, and even if there could be any objection on account of this variance it should have been taken advantage of in the Court below. It is too late to raise that question for the first time in this Court. There was no error in the Court below allowing the statutory fee of twenty-five dollars. This disposes of all the questions raised in the case.

However, as the defendants havé assailed the constitutionality of the act under consideration, we will remark that there is an interesting and important constitutional question involved in this act. The question is, do not the

summary proceedings authorized against a defendant, deprive him of his constitutional right to be tried “ by due process of law.” This question was not raised in this case, and we express no opinion upon it. The judgment is affirmed.