Potts v. Orlando Building Service

Full title: JEWELL S. POTTS, JR., AND ELSIE MAE POTTS, HUSBAND AND WIFE, APPELLANTS…

Court: District Court of Appeal of Florida, Fourth District

Date published: Jan 29, 1968

206 So. 2d 221 (Fla. Dist. Ct. App. 1968)

Opinion

No. 1608.

January 29, 1968.

Interlocutory appeal from Circuit Court, Brevard County; William G. Akridge, Judge.

Charles M. Rieders, Cocoa Beach, for appellants.

WALDEN, Chief Judge.

Defendants, Jewell S. Potts, Jr., and his wife, Elsie Mae Potts, bring an interlocutory appeal from an order which denied their motion to dismiss plaintiff's complaint for the enforcement of a mechanics lien. We reverse.

The much amended complaint fails to allege that the affidavit required by Section 84.061(3) (d), F.S. 1965, F.S.A. as a prerequisite to institution of suit has been filed.

Such an omission is jurisdictional in nature¹ and requires that the complaint be dismissed.²

1 Brown v. First Federal Sav. Loan Assoc., Fla.App. 1964, 160 So.2d 556, (which dealt with Section 84.04(3), F.S. 1959, the predecessor of Section 84.061(3) (d), F.S. 1965, F.S.A.).

2 Halifax Construction Co. v. Chastain Groves Inc., Fla.App. 1966, 192 So.2d 15; Oper v. Russell, Inc., Fla.App. 1967, 197 So.2d 13.

Reversed.

CROSS and McCAIN, JJ., concur.