JOHN MCCLUSKEY
v.
J. HAROLD KLOCK
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McCluskey sought review of a chancery court order canceling his recorded lien claim after he initiated a summary proceeding to enforce the lien instead of filing a foreclosure action as the court had directed. The Florida Supreme Court held that McCluskey complied with the court's order by commencing enforcement proceedings within the prescribed time, even though he chose a summary proceeding rather than equity foreclosure, and therefore reversed the cancellation of his lien.
McCluskey sufficiently complied with the Chancellor's order by commencing enforcement proceedings within the time fixed, even though he chose a summary proceeding under Section 86.06 rather than equity foreclosure. The Chancellor erred in canceling the recorded lien claim because the order did not prescribe that the claimant proceed in equity, and the Chancellor could not properly govern the forum for enforcement proceedings.
“Since the parties were already before a court having jurisdiction to enforce liens, it appears it might have been appropriate for the claimant to have filed his foreclosure proceedings in the case wherein he was cited. However, the law gives him the right to proceed pursuant to Sec. 86.06, F.S. 1941, F.S.A., and this he did within the time fixed by the Chancellor's order.”
Establishes that McCluskey had a statutory right to choose the forum for enforcement and exercised it within the prescribed time
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Join FLexlaw to unlock all legal intelligenceMcCluskey filed a claim of lien on December 31, 1947, in Dade County. Klock obtained a rule to show cause requiring McCluskey to enforce the lien. The…
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The respondent (petitioner below), pursuant to Sec.' 84.23, F.S. 1941, F.S.A., sought and procured a. rule to show cause, *538addressed to the petitioner here, requiring him to show cause “why he should not be required to enforce the Claim of Lien.
The Chancellor, upon a hearing on the return to the Rule, decreed:
“1. The Respondent, John McCluskey, is hereby ordered and directed to commence an action for the foreclosure of the claim of lien filed by him on December 31,1947,- under Clerk’s File No. W-105286 of the Public Records of Dade County, Florida, within 30 days of the date of this order.
“2. In the event that the Respondent fails to commence an action of foreclosure as above directed then upon the affidavit of the Petitioner, or his attorney herein, the Clerk of the court is hereby ordered and directed to record a cancellation of the said claim of lien.”
Thereafter the respondent-petitioner moved for an order cancelling the Claim of Lien upon the following ground: >
“2. To date the defendant has failed to commence an action of foreclosure as directed by said order and instead thereof instituted an action of Summary Proceeding under Chapter 86.06 of the Florida Statutes ldlfL.”
Which motion was granted and the claimant now seeks review by certiorari.
Since the parties were already before a court having jurisdiction to enforce liens, it appears it might have been appropriate for the claimant to have filed his foreclosure proceedings in the case wherein he was cited. However, the law gives him the right to proceed pursuant to Sec. 86.06, F.S. 1941, F.S.A., and this he did within the time fixed by the Chancellor’s order. The order entered did not prescribe that claimant should proceed in equity, and it is doubtful that the Chancellor could have properly governed the forum for enforcement proceedings.
It is our conclusion that the claimant has sufficiently complied with the law and that the Chancellor erred in cancelling the recorded Claim of Lien.
The petition is granted and decree is quashed.
TERRELL, Acting Chief Justice, CHAPMAN and SE-. BRING, JJ., concur.
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S. Attractions, Inc. v. Art C. Grau, 93 So. 2d 120 (Fla. 1956)…reinbefore provided, the petitioner may sue out his writ of execution, as in the case of other executions on judgments of suits at law.’1 (Emphasis added.) This question was dealt with somewhat in the case of McCluskey v. Klock, 1948, 160 Fla. 537, 35 So. 2d 646, where petitioner secured a rule to show cause why the party claiming a lien should not be compelled to' enforce his claim of lien. The chancellor ordered claimant to commence a foreclosure suit or have the claim cancelled. Claimant did not institut…
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Wesley Constr. Co. v. Yarnell, 268 So. 2d 454 (Fla. 4th DCA 1972)…mingly do not apply here, since there is no comparable statute prohibiting joinder of an action of foreclosure of a mechanic’s lien with any other kind of action. Two cases touch on the point raised by this appeal. In McCluskey v. Klock, Fla. 1948, 160 Fla. 537, 35 So. 2d 646, an interested party brought an action under the predecessor of Section 713.21(4), and the lienor was ordered to commence a foreclosure action within thirty days or have his lien cancelled. The lienor instituted a summary proceeding u…