Wesley Construction Company v. Biscayne Construction, Inc. , 341 So. 2d 786 ( 1977 )

341 So.2d 786 (1977)

WESLEY CONSTRUCTION COMPANY, a Florida Corporation, Appellant,
v.
BISCAYNE CONSTRUCTION, INC., a Florida Corporation, Appellee.

No. 76-794.

District Court of Appeal of Florida, Third District.

January 4, 1977. Rehearing Denied February 2, 1977.

Edward C. Vining, Jr., Miami, for appellant.

Goethel & Garcia-Vidal, Coral Gables, for appellee.

Before HENDRY, C.J., and PEARSON and NATHAN, JJ.

PER CURIAM.

This is an interlocutory appeal from an order of the Circuit Court of Dade County entered upon the motion of appellees, directing the Port Authority of Dade County to distrain funds which it owed to appellant in connection with construction work.

The order complained of on appeal is as follows:

"ORDER GRANTING MOTION TO DIRECT COUNTY TO DISTRAIN FUNDS

"THIS CAUSE COMING ON TO BE HEARD BEFORE ME, the undersigned Judge of the above-entitled Court, upon the Motion of the Plaintiff, BISCAYNE CONSTRUCTION, INC., to Direct County to Distrain

Funds due the Defendant, WESLEY CONSTRUCTION COMPANY, and the Court having reviewed said Motion, having noted a Final Judgment was entered on November 7, 1975, in favor of the Plaintiff and against the Defendant in the amount of Twenty-One Thousand Two Hundred Thirty-Nine and Ten/100 Dollars ($21,239.10), having heard argument of counsel for the respective parties and being otherwise fully advised in the premises it is, upon consideration

"ORDERED AND ADJUDGED:

"1. That the Motion filed by the Plaintiff, BISCAYNE CONSTRUCTION, to direct the Port Authority of Dade County, State of Florida, to distrain funds due the Defendant, WESLEY CONSTRUCTION COMPANY in the sum of Twenty-One Thousand Two Hundred Thirty-Nine and Ten/100 Dollars ($21,239.10) pursuant to contract # 5135-75 entitled Temporary Improvements Phase Five be and the same is hereby granted.

"2. That the Port Authority of Dade County, State of Florida, be and it is hereby directed to distrain funds by acting as constructive trustee of the sum of Twenty-One Thousand Two Hundred Thirty-Nine and Ten/100 Dollars ($21,239.10) for the use and benefit of the Plaintiff, BISCAYNE CONSTRUCTION, INC., pending further Order of this Court, said sum being due the Defendant, WESLEY CONSTRUCTION COMPANY, pursuant to a contract with the Port Authority of Dade County, State of Florida, bearing contract # 513-C5 for ``temporary improvements — phase five.'"

Appellant has assigned numerous errors which it contends entitles it to a reversal of the order appealed. We, however, find no useful purpose in discussing all of the alleged errors in that the following is dispositive of this appeal.

It is the contention of appellant that the trial court erred in entering the above order in that it amounts to a garnishment order against Dade County, and as such, is not permitted by law.

We find merit in appellant's contention and reverse on the authority of Michigan Lumber and Mfg. Co. v. Duval County, 45 Fla. 472, 34 So. 245 (1903); Board of County Commissioners of Okaloosa County v. Gulf Pipeline Company, 168 So.2d 757 (Fla.1st DCA 1964) and Op. Att'y Gen. 069-12 "Sovereign Immunity," all to the effect that a county is immune from garnishment proceedings filed pursuant to Chapter 77, Florida Statutes (1975).

Reversed.