Davis v. Modern Woodmen of America , 118 So. 2d 805 ( 1960 )

PER CURIAM.

This is an appeal from a final decree in an action of interpleader. A notice of appeal was filed by one of the defendants, Raymond Andrew Davis. Defendant, Edith Maynard Davis, who.prevailed in the trial court, cross assigned as error the provision in the final decree which allowed an attorney’s fee to the plaintiff, Modern Woodmen of America. Thereafter, upon motion by Edith Maynard Davis, the appeal brought by Raymond Andrew Davis was dismissed, and it was further ordered that the cross assignment of error shall stand as an appeal to be processed by Edith Maynard Davis as by an appellant.

It is urged that the trial judge erred when he allowed the plaintiff an attorney’s fee because suit upon the contract of insurance had been brought by the cross appellant prior to the time of the filing of the bill of interpleader. The record reveáis that this case is governed by the principle relative to attorney’s fees upon bills of interpleader set forth by the Supreme Court of Florida in Drummond Title Company v. Weinroth, Fla.1955, 77 So.2d 606, 610, and Equitable Life Assurance Society of U. S., v. Nichols, Fla.1956, 84 So.2d 500, 501.

Therefore, the allowance of an attorney’s fee was erroneous.

The decree is reversed in part.

HORTON, C. J., and PEARSON and CARROLL, CHAS., JJ., concur.