Atlantic Coast Lumber Corp. v. Morrison

• Decision Date: 21 August 1929
• Docket Number: 12721.
• Citation: 149 S.E. 243,152 S.C. 305
• Parties: ATLANTIC COAST LUMBER CORPORATION v. MORRISON et al. SOUTHERN MERCANTILE CO. v. SAME.
• Court: South Carolina Supreme Court

149 S.E. 243

152 S.C. 305

ATLANTIC COAST LUMBER CORPORATION v. MORRISON et al.

SOUTHERN MERCANTILE CO. v. SAME.

No. 12721.

Supreme Court of South Carolina

August 21, 1929

Appeal from Common Pleas Circuit Court of Charleston County; W. H Grimball, Judge.

Petition to foreclose a mechanic's lien by the Atlantic Coast Lumber Corporation and by the Southern Mercantile Company against R. L. Morrison and others, trustees of the McClellanville Public School. From an order overruling a demurrer, respondents appeal. Affirmed.

Huger Wilbur, Miller & Mouzon, of Charleston, for appellants.

Maham W. Pyatt, of Georgetown, for respondents.

BLEASE J.

These two causes, in which identical questions have been raised were heard together on circuit. It was agreed there that the decree in the case first entitled would apply to the other case also; and, likewise, the judgment here is to determine both cases.

The respondent here was the petitioner in the lower court; and the appellants here were the respondents in that tribunal. To avoid confusion, we adopt the same terminology the parties had on the circuit, referring to the petitioner-respondent simply as the petitioner and the respondents-appellants as the respondents.

The petitioner instituted its proceeding, styled a petition to foreclose a mechanic's lien, in the court of common pleas for Charleston county, and there was served on the respondents with the petition the usual summons in a civil action.

The petition, omitting the formal parts, contained allegations, briefly stated, as follows: (a) That respondents contracted with one Powers to enlarge and improve a school building for the school district of respondents; (b) a description of the premises upon which the building was located; (c) ownership of the premises by respondents; and, (d) the filing within the required time in the office of the register of mesne conveyances of proper statement of petitioner's claim for a mechanic's lien. In addition, the petition set up certain matters, as will be shown by the following quotations therefrom:

"5. That the said E. Powers, Contractor, with the knowledge and consent of the said Trustees, and at their instance and request, purchased certain lumber from your Petitioner, and became indebted to your Petitioner in the amount of One Thousand One Hundred Twenty-eight & 43/100 ($1,128.43) Dollars, for lumber sold and delivered by said Atlantic Coast Lumber Corporation, your Petitioner, to the said E. Powers, Contractor, to be used in constructing the addition to said school building, and that the said lumber was sold by said Petitioner to said Powers with the knowledge and consent, and at the instance and request, of the said Trustees as above set forth."

"7. That the said E. Powers, Contractor, has failed and neglected to pay Petitioner any part of the purchase price of the said lumber sold, and that there is now due and owing to the Petitioner from the Respondents the sum of One Thousand One Hundred and Twenty-eight & 43/100 ($1,128.43) Dollars."

"8. That your Petitioner began to furnish material on or about the 24th day of July, 1928, and continued to furnish material until the 26th day of July, 1928, and that an itemized and verified account of the lumber sold and delivered by your Petitioner to the said E. Powers, Contractor, with the knowledge and consent and at the instance and request of the said Respondents, is hereto attached."

In the prayer of the pleading, the petitioner demanded judgment against the respondents for the amount of its alleged claim, and asked that the same be adjudged a lien on the premises described, and that said premises be sold and the proceeds of sale be applied to petitioner's claim and the costs and disbursements of the action.

The respondents demurred to the petition on three grounds, which demurrer was overruled by Hon. William H. Grimball, presiding judge, in an order he made. It is from that order that the respondents have appealed.

The grounds of demurrer and the five exceptions on appeal raise, as succinctly stated in the argument of respondents' counsel, three questions for determination, as follows:

(1) Can there be a mechanic's lien on a public school building?

(2) If it appears from the allegations of a petition to foreclose a mechanic's lien that the petitioner has no lien, can the action be allowed to proceed as an action in personam, or should the petition be dismissed upon demurrer?

(3) Does the petition in this case state facts sufficient to constitute a cause of action in personam?

As to the first question: In his order, Judge Grimball stated that he was satisfied that the great weight of authority was to the effect that no mechanic's lien could be enforced against any public building, such as a schoolhouse. We agree with him in that view. There does not appear to be any doubt of the proposition that public property may not be subjected to a mechanic's lien, except upon specific statutory authority. See note to 26 A. L. R. 326; 40 C.J. 57; 18 R. C. L. 881. There is no statute in this state making and authorizing a public building to be subject to such lien.

We turn to the second question: It does appear from our decisions that the respondents are correct in their position that in a proceeding strictly to enforce a mechanic's lien, the petitioner may not recover a personal judgment against the owner of the property or such judgment for any deficiency that may result from its sale. Johnson v. Frazee, 20 S.C. 500; Tenney v. Water Power Co., 67 S.C. 11, 45 S.E. 111; Metz v. Critcher, 83 S.C. 396, 65 S.E. 394; Smythe v. Monash, 109 S.C. 82, 95 S.E. 138.

But the result of our answer to the first question is to eliminate from the petitioner's pleading all the allegations pointing directly to the mechanic's lien, its establishment and enforcement. Those allegations, so far as the pleading is concerned, may be treated as surplusage, and disregarded. Lorick & Lowrance v. Caldwell, 85 S.C. 94, 67 S.E. 143; Farmers' Union Mercantile Co. v. Anderson, 108 S.C. 66, 93 S.E. 422.

Since the petitioner had no lien on the school building, its proceeding to enforce such alleged lien necessarily fell through. The statutes as to ""Liens on Lands and Buildings for Labor and Materials" (chapter 90, article 2, vol. 3, Code 1922) were not applicable to the relief, if any, to which petitioner was entitled.

A civil action in a court of record in this state is commenced by the service of a summons (section 383, vol. 1, Code 1922); and such summons, in the usual and required form, was served in this case.

Although the moving party was styled "petitioner" rather than ""plaintiff," both in the caption and the body of the pleading, there is no substantial difference in the...