Matthews v. Monts

• Decision Date: 16 August 1901
• Parties: MATTHEWS et al. v. MONTS.
• Court: South Carolina Supreme Court

39 S.E. 575

61 S.C. 385

MATTHEWS et al. v. MONTS.

Supreme Court of South Carolina

August 16, 1901

Appeal from common pleas circuit court of Newberry county; Benet Judge.

Action by Matthews & Wilson against J. Ed. Monts to forclose a mechanic's lien. From an order overruling a demurrer to the complaint, defendant appeals. Affirmed.

Johnstone & Welch, for appellant.

Hunt & Hunt, for respondents.

JONES J.

This appeal is from an order overruling a demurrer to a complaint to foreclose a mechanic's lien. The demurrer was as follows: "The said complaint does not state facts sufficient to constitute a cause of action: (1) In that it is not alleged in the complaint that this action was commenced within six months after the plaintiffs ceased to labor or furnish material for said building; (2) in that no description of the property is alleged to have been given in the 'statement' filed in the clerk's office May 21 1898; (3) in that it is not alleged that the defendant is the owner of the property upon which said building was erected (4) in that it is not alleged that notice was given to the owner of the said property; (5) in that the date of ceasing to labor and furnish material upon said building is not given."

The action was commenced on September 1, 1898, and the complaint alleges that "the petitioners above named delivered to the said J. Ed. Monts, during the months of January, February, and March of the year 1898, lumber and other building materials, and performed labor thereon," etc. So that it appears with reasonable certainty that the action was commenced within six months after the plaintiffs ceased to furnish labor or material, even if it be conceded that demurrer is the proper remedy. It would seem, however, that the proper remedy in such case is not demurrer, but answer setting up the statutory bar to the action. Section 94 of the Code provides that "the objection that the action was not commenced within the time limited can only be taken by answer."

2. We think the complaint shows compliance with section 2469, Rev St. 1893, which requires that the "statement" to be filed with the clerk of the court or register of mesne conveyances within 90 days after ceasing to furnish labor or materials shall contain "a description of the property intended to be covered by the lien sufficiently accurate for identification." The complaint alleges in paragraph 2 that plaintiffs, by the contract made with defendant, "were to furnish lumber and other building materials for the construction and erection of a one-story frame shingle-roof building upon certain real estate hereinafter more fully described"; and paragraphs 6 and 7 allege as follows: "(6) That the above-mentioned one-story frame shingle-roof building is situate on a piece, parcel, or tract of land lying in the county and State aforesaid,...