J. R. EDDINS, APPELLANT,
v.
MARY TWEDDLE AND GEORGE W. TWEDDLE, APPELLEE
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A mechanic's lien plaintiff appealed the dismissal of his action against a married woman's property, claiming the statute creating mechanic's liens was unconstitutional as applied to married women's separate statutory property. The Florida Supreme Court affirmed the dismissal on the independent ground that the lien had expired by the six-month statutory limitation period before suit was filed.
The court did not reach the constitutional question because the affidavit showed that more than six months had elapsed between the last day labor was performed or materials furnished (September 29, 1888) and the date suit was brought (May 9, 1889), causing the mechanic's lien to expire by its own statutory limitation before any cause of action existed.
“That the liens provided for in this act shall be created at the-time any labor is done or material furnished, and shall continue for six months from the last day upon which such labor was done or material furnished.”
The statutory language establishing the six-month limitation period for mechanic's liens under the 1887 act.
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Join FLexlaw to unlock all legal intelligenceAppellant Eddins performed work and supplied materials for the construction of a dwelling house on property owned by Mary Tweddle (a married woman) be…
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Liddon, J.:
The appellant brought his action at law under the .statute of 1887 (Chapter 3747, laws of Florida) to enforce a mechanic’s lien upon her contract, against the property of a married woman. The defendant moved to dismiss upon several grounds. The affidavit which, in such proceedings, answers the purpose of a declaration in such cases, alleged that the indebtedness for which the lien was claimed was for work done and labor and material supplied to the said defendant Mary Tweddle between September 6th and September 29th, 1888, in the construction of a dwelling-house, etc. The suit was begun on the 9th of May, 1889. Upon motion of the defendants the suit was dismissed by the court below.
The only argument presented by the parties is as to the constitutionality of the act under which proceedings were taken, and whether it is operative to create .a lien upon the separate statutory property of married women, upon their contracts for buildings erected upon such, property. The motion to dismiss was treated by both parties, in the Circuit Court and in this court, as-a demurrer; therefore we treat it as such. We are not able to decide the points presented by argument of counsel, for the reason that the affidavit tiled shows that at the time the suit was begun, the plaintiff did not have any lien at all upon the property under the statute, without considering the circumstance of its being the property of a married woman.
Section 17 of the act (page 130 acts of 1887) is as follows: “That the liens provided for in this act shall be created at the-time any labor is done or material furnished, and shall continue for six months from the last day upon which such labor was done or material furnished.” By noting-the dates hereinbefore stated when the work was done and the materials furnished, and the date the suit was brought, it will be seen that more than six months had intervened. It is apparent upon the face of the affidavit that the plaintiff had no cause of action; that his lien, if it ever existed, had expired by limitation. This.very objection was not made below, but we can not-refuse to rake notice, when a declaration, or a paper or-pleading which stands in the place of it, utterly fails to show a cause of action. Crawford vs. Feder, 34 Fla. 397, 16 South. Rep. 287; Crawford vs. Tiedeman, 35 Fla. 27, 16 South. Rep. —; Pittman vs. Myrick, 16 Fla. 692; Warburton vs. Coumbe, 34 Fla. 212, 15 South. Rep.
769. There was no error in dismissing the action.
The judgment of the Circuit Court is affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bowery v. Searles Babbit, 99 Fla. 1151 (Fla. 1930)…facts showing that the material was furnished more than twelve months before the suit to enforce the lien was instituted. Furthermore, to sustain the excerpt which' we have just quoted from the opinion, the Court cited the ease of Eddins v. Tweddle, 35 Fla. 107, 17 So. R. 66, where in a proceeding at law to enforce a mechanic’s lien under an Act then in force, the Court held as follows: “It is apparent upon the face of the affidavit that the plaintiff had no cause of action; that his lien, if it ever exis…
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Booker & Co., Inc. v. Leon H. Watson, Inc., 96 Fla. 671 (Fla. 1928)
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Hall v. The N. & S. Co., 55 Fla. 242 (Fla. 1908)…be defective. If a declaration fails to allege substantive facts that are essential to a right of action the trial court or the appellate court may take notice of such fatal defect and m,ake a proper disposition of the cause. See Eddins v. Tweddle, 35 Fla. 107, 17 South. Rep. 66; Florida Cent. & P. R. Co. v. Ashmore, 43 Fla. 272, 32 South. Rep. 832; State ex rel. Kittel v. Jennings, 47 Fla. 302, 35 South. Rep. 986. The fifth ground of the demurrer to the declaration is “that it does not appear that the p…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Celeste F. Crawford v. H. & G. Feder, 34 Fla. 397 (Fla. 1894)
- Pittman's Administrator v. Myrick, 16 Fla. 692 (Fla. 1878)
- Piers E. Warburton v. Coumbe, 34 Fla. 212 (Fla. 1894)
- Celeste F. Crawford v. George W. Tiedeman & Bro., 35 Fla. 27 (Fla. 1895)