Lightsey,v,. Rentz.

• Decision Date: 01 April 1910
• Parties: LIGHTSEY v . RENTZ.
• Court: South Carolina Supreme Court

67 S.E. 456

85 S.C. 401

LIGHTSEYv. RENTZ.

Supreme Court of South Carolina,

April 1, 1910.

1. Agriculture (§ 15^*) — Agricultural Liens—Discharge—Proceedings—Time op Taking—Excuses for Delay—Excusable Neglect

Civ. Code 1902, § 3062, requires the clerk, in proceedings to foreclose a lien for advances for agricultural supplies, to issue a warrant for the seizure and sale of the crop, provided that, if the person to whom such advances are made shall within 30 days after sale give written notice to the sheriff, with an affidavit, that the amount claimed is not justly due. the sheriff shall hold the proceeds of the sale subject to the court's decision, upon an issue made up and tried in which the lienor shall be the actor. Held, that the provisions of the Code of Procedure allowing extensions of time for inadvertence and excusable neglect did not apply to proceedings to foreclose agricultural liens, so as to excuse the Iienee's failure to give notice and affidavit, as required by section 3062, so that failure for any reason to give such notice within the prescribed time deprives the court of power to entertain an issue made up under the statute.

[Ed. Note.—For other cases, see Agriculture, Cent. Dig. §§ 42-49; Dec. Dig. § 15.*]

2. Agriculture (§ 15*)—Agricultural Liens — Enforcement — Enforcement Against Sureties.

In proceedings to foreclose a lien for agricultural supplies, in which the lienee gave bond and recovered the crop, but did not, within 30 days after the sale, serve written notice and affidavit that the amount claimed was not justly due. as required by statute, judgment could be entered against the sureties on the bond, though they were not before the court.

[Ed. Note.—For other cases, see Agriculture, Cent. Dig. §§ 42-49; Dec. Dig. § 15.*]

Appeal from Common Pleas Circuit Court of Colleton County; J. W. De Vore, Judge.

Proceedings by W. Fred Lightsey against J. F. Rentz, to foreclose a lien for agricultural supplies. From a judgment for lienor, the lienee appeals. Affirmed.

Padgett & Lemacks, for appellant.

Peuri-

foy Bros., for respondent.

WOODS, J. Under proceedings instituted in accordance with section 3062 of the Civil Code, by W. Fred Lightsey to foreclose a lien for agricultural supplies, the clerk of Colleton county issued his warrant, and thereunder the sheriff of Colleton county seized the crop of J. F. Rentz. Copies of the lien, affidavit, undertaking, and warrant were served on Rentz on November 14, 1908; and immediately thereafter he gave the bond au-thorized by section 3067, and recovered possession of the crop. Section 3062, requiring the clerk to issue the warrant for the seizure and sale of the crop by the sheriff, contains the following proviso: "That if the person to whom such advances have been made, shall, within thirty days after such sale has been made, give notice in writing to the sheriff, accompanied with an affidavit to this effect, that the amount claimed is not justly due, then it shall be the duty of the said sheriff to hold the proceeds of such sale subject to the decision of the court upon an issue which shall be made up and set down for trial at the next succeeding term of the court of common pleas for the county in which the person to whom such advances have been made resides, in which the person who makes such advances shall be the actor."

The notice and affidavit referred to in this clause of the statute were not served within 30 days, the prescribed time. On January 18, 1909, more than 30 days after the seizure, the attorneys for the lienee, in pursuance of notice served on the attorneys for the lienor, moved before Judge Memminger at chambers for an order requiring the lienor to return the crop to the sheriff, and providing that, in case of the failure of Rentz to return the crop, the lienee should have judgment for $400 against the lienor and the sureties on his bond. At the same time a motion was made on behalf of Rentz for an order allowing him to file out of time the notice and affidavit, to the effect that the amount claimed on the lien was not justly due. This application for relief from default was made on an affidavit of Mr. Padgett, attorney for Rentz, to the effect...