Faust v. Bonnett

• Decision Date: 17 July 1918
• Docket Number: 10026.
• Citation: 96 S.E. 489,110 S.C. 435
• Parties: FAUST v. BONNETT.
• Court: South Carolina Supreme Court

96 S.E. 489

110 S.C. 435

FAUST v. BONNETT.

No. 10026.

Supreme Court of South Carolina

July 17, 1918

Appeal from Common Pleas Circuit Court of Aiken County; R. W Memminger, Judge.

Action by O. R. Faust against J. P. Bonnett. Judgment for plaintiff and defendant appeals. Affirmed.

John F Williams, of Aiken, for appellant.

Sawyer & Gyles, of Aiken, for respondent.

FRASER J.

This case originated in a proceeding to foreclose a landlord's lien for rent and advances. The clerk issued the warrant. A motion was made to set aside the warrant on the ground that the clerk was not authorized by statute to issue the warrant and on the further ground that the statements in the petition were made only on information and belief, without stating the sources of information or the facts upon which the belief was based. The motion to set aside the warrant was refused, and this appeal involves both questions. Section 4162 of the Code 1912 provides a lien for the landlord for rent and advances and provides that these liens shall be enforced as other liens for advances. Section 4166 empowers the clerk to issue the warrant to foreclose a lien for advances. Section 4167 authorizes the magistrate to issue the warrant where the amount does not exceed one hundred dollars. This section, however, contains this provision:

"This section shall be construed to prevent clerks of court from issuing warrants to enforce agricultural liens in all cases, as in this article provided."

This section, before its promulgation in the Code of 1912, contains the word "not," and reads: "This section shall not be construed," etc. It is manifest, upon reading the Code, taking the sections before and after section 4167, that the omission of the word "not" is purely a typographical error. Section 4168 provides for the requisites of the affidavit upon which the officers may issue the warrant. Taking therefore as true the rule that the latter clause of a statute, being the last expression of the legislative will, will repeal a former inconsistent provision, still the provisions of section 4168 recognize the right of the officers to issue the warrant and prevents the repeal. On reading all the sections, it is manifest that the legislative intent was to provide that the clerk should have concurrent jurisdiction with the magistrate where the amount was less than one hundred dollars.

This exception cannot be sustained.

II. A careful reading...