W. C. NELSON, LEILA M. DUVAL, WIFE OF HUGH F. DUVAL, FREDDIE ANDERSON, WIFE OF HUGH F. ANDERSON, AND C. C. PRITCHARD, PLAINTIFFS IN ERROR,
v.
SELDEN CYPRESS DOOR COMPANY, A CORPORATION, DEFENDANT IN ERROR
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The Florida Supreme Court denied a rehearing, holding that a party waived the right to challenge an attorneys' fee award by not objecting to it at the trial level. The court emphasized that issues not presented on initial appeal cannot be raised later.
No, a party cannot raise an objection to an attorneys' fee award for the first time on a motion for rehearing if the issue was not presented or questioned during the original proceedings or on the initial appeal.
“While the judgment awards attorneys’ fees to the amount of ten per cent, of .the recovery, no objection was made to this in any of the proceedings shown by the transcript.”
Establishes that no objection was made to the attorneys' fee award in the lower court.
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Per Curiam.
— The judgment herein was affirmed without opinion and an application for rehearing suggests “that the court overlooked the fact that the judgment allowed and gave attorneys’ fee for plaintiffs’ attorneys in the suit; that, under the law, attorneys’ fees are not recoverable in suits to foreclose mechanics’ liens.”
While the judgment awards attorneys’ fees to the amount of ten per cent, of .the recovery, no objection was made to this in any of the proceedings shown by the transcript. The illegality, if any, in the judgment because of the allowance of attorneys’ fees was not questioned, and consequently the point was waived. As the question of attorneys’ fees was not presented for determination when the case was heard on its merits, such question cannot now be presented, on an application for rehearing, as a matter overlooked by the court in affirming the judgment. No opinion is now suggested as to the validity of the award for attorneys’ fees in cases of this character under Section 2218, General Statutes, 1906, Compiled Laws, 1914. See Phillips v. Atwell, 76 Fla. 480, 80 South. Rep. 180; Union Terminal Co. v. Turner Construction Co., 247 Fed. Rep. 727. See also Missouri, Kansas & Texas Ry. Co. of Texas v. Harris, 234 U. S. 412, 58 L. Ed. 1377, 34 Sup. Ct. Rep. 790, L. R. A. (N. S.) 1915E 942 and Notes, Page 947; Dell v. Marvin, 41 Fla. 221, 26 South. Rep. 188, C. M. & St. P. v. Polt, 232 U. S. 165; St. L. I. M. & S. v. Wynne, 224 U. S. 354; A. T. & S. F. Ry. v. Vosburg, 238 U. S. 56.
Rehearing denied.
All concur.
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Citator
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Palm Beach Bank & Tr. Co. v. Lainhart, 84 Fla. 662 (Fla. 1922)…statute making such provision is, as had been pointed out by this court, unconstitutional. See Phillips v. Atwell, 76 Fla. 480, 80 South. Rep. 180; Union Terminal Co. v. Turner Coast Co., 247 Fed. Rep. 727; Nelson et al. v. Selden Cypress Door Co., 78 Fla. 204, 83 South. Rep. 286; Empire Drug Co. v. Smith, 78 Fla. 594, 83 South. Rep. 458; Lowe v. East and West Coast Ry., 79 Fla. 43, 83 South. Rep. 671. In the ease of those materialmen and laborers, who under contract furnished material and labor for buil…
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Crim v. Drake, 86 Fla. 470 (Fla. 1923)…is, as has been pointed out by this court, unconstitutional. See Phillips v. Atwell, 76 Fla. 480, 80 South. Rep. 180; Union Terminal Co. v. Turner Const. Co., 247 Fed. 727, 159 C. C. A. 585, 11 A. L. R. 880; Nelson et al. v. Selden Cypress Door Co., 78 Fla. 204, 83 South. Rep. 286; Empire Drug Co. v. Smith, 78 Fla. 594, 83 South. Rep. 458; Lowe v. East & West Coast Ry., 79 Fla. 43, 83 South. Rep. 671.” For the errors in denying the motion to strike the replication to the fourth plea, and entering judgment…
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Lowe v. East and West Coast Railway, 79 Fla. 43 (Fla. 1920)…. & St. P. R. Co. v. Polt, 232 U. S. 165, 34 Sup. Ct. Rep. 301; Missouri, K. & T. R. Co. of Texas v. Cade, 233 U. S. 642, 34 Sup. Ct. Rep. 678; Missouri, K. & T. R. Co. of Texas v. Harris, 234 U. S. 412, 34 Sup. Ct. Rep. 790; Nelson v. Selden, etc., 78 Fla. 204, 82 South. Rep. 286. In Dell v. Martin, 41 Fla. 221, 26 South. Rep. 188, a divided court held a somewhat different statute to be valid as applied in that case. Since then the principles of organic law controlling such matters have been more fully d…
Authorities Cited
- Missouri v. Harris, 234 U.S. 412 (U.S. 1914)
- Chicago v. Polt, 232 U.S. 165 (U.S. 1914)
- ST. Louis v. Wynne, 224 U.S. 354 (U.S. 1912)
- Atchison v. Vosburg, 238 U.S. 56 (U.S. 1915)
- Dell v. Marvin, 41 Fla. 221 (Fla. 1899)
- Phillips v. Atwell, 76 Fla. 480 (Fla. 1918)