Moody v. Dudley Lumber Co.

• Decision Date: 25 February 1927
• Docket Number: 12162.
• Parties: MOODY v. DUDLEY LUMBER CO. et al.
• Court: South Carolina Supreme Court

137 S.E. 141

138 S.C. 478

MOODY v. DUDLEY LUMBER CO. et al.

No. 12162.

Supreme Court of South Carolina

February 25, 1927

Appeal from Circuit Court of Colleton County; J. Henry Johnson Judge.

Action by J. R. Moody against the Dudley Lumber Company and another. From an order refusing to dissolve an attachment obtained by plaintiff, the defendant named appeals. Affirmed.

See also, 136 S.C. 327, 134 S.E. 369.

The order of the circuit judge follows:

"This cause came on to be heard before me at chambers at Allendale, on August 22, 1925, upon motion of defendant Dudley Lumber Company, to dissolve the attachment theretofore issued on February 19, 1925, by the clerk of court of Colleton county, upon the ground that 'the same was irregularly and improvidently issued by the clerk of this court,' in that the complaint and affidavit show:

(a) That the plaintiff was not such an employee in the mill or manufacturing establishment of the defendant Dudley Lumber Company as would entitle him to a lien under sections 5703, 5704, and 5705, of the Civil Code of 1922.

(b) That the plaintiff was not employed by the day or month.

(c) That his alleged compensation was based upon commissions calculated upon the sale of the output of the mill, and he was not to receive salary or wages.

(d) That the alleged contract of employment contemplated and provided for a sale of the output of the mill before the alleged compensation claimed by plaintiff would be due and could be paid to him.

(e) That the alleged character of employment of the plaintiff was such as would not entitle him to invoke the aid of sections 5703, 5704, and 5705, of the Civil Code of 1922.

(f) That, if the plaintiff performed any labor on the construction of the sawmill and dry kiln or any other buildings of the defendant, as alleged in paragraph 2 of the complaint, and referred to in his affidavit, it would not entitle him to a lien upon the output of the mill or manufacturing establishment of the defendant therefor.

(g) That the plaintiff did not help or assist in the production or manufacture of any of the property which he had attached.

(h) That the amount of compensation claimed by the plaintiff is unliquidated, and is conditional upon the sale of the product of the manufacturing establishment.

(i) That no salary or wages was to be paid to the plaintiff.

(j) That the alleged labor performed on the sawmill and dry kiln was not performed under an express contract, and the amount of compensation to be paid to plaintiff was not stipulated nor agreed upon, and plaintiff's only claim for such compensation was under a quantum meruit.

(k) That the plaintiff was not a laborer, as contemplated under sections 5703, 5704, and 5705, Civil Code of 1922.

And also in that sections 5703, 5704, and 5705 of the Civil Code of 1922, under which the said warrant of attachment was issued, are too indefinite as to what officer of the court is to issue the said warrant of attachment, and the said statutes do not authorize the warrant of attachment to be issued by the clerk of the court.

The defendant Atlantic Coast Line Railroad Company was made a party to the action because a portion of the attached lumber was in its possession, but, the attachment having been relieved by bond of its codefendant, it took no part in the motion to dissolve.

Upon call of the motion before me, plaintiff first entered a special appearance to object to the jurisdiction of the court to dissolve the attachment, upon the grounds:

(1) That the statute under which the attachment was procured (sections 5703, 5704, vol. 3, Code 1922) does not provide for the dissolution of an attachment after the filing of bond.

(2) If defendant ever had the right to move to vacate the attachment, it waived such right by the filing of bond, by pleading to the complaint, and by taking other action hereinafter referred to.

"The first ground of objection to the court's jurisdiction was promptly overruled upon the ground that the court of common pleas necessarily has the power, in a proper case, to dissolve an attachment issued out of such court by its clerk and it was the opinion of the court that the question of waiver or estoppel was to be determined after a full hearing upon the merits of the motion.

"The record of the cause disclosed that the summons and complaint were served, and the attachment issued and levied on February 19, 1925; that defendant Dudley Lumber Company filed its bond to relieve such attachment on the 23d day of that month, accompanying the same with a 'notice' that the exigencies of the circumstances required that the attachment be forthwith relieved, disclaiming plaintiff's right to a lien upon the property attached, and, in effect, reserving, or attempting to reserve, its right to move to vacate the attachment for 'manifest errors appearing in the affidavit of plaintiff to secure the attachment'; that, on the same day, plaintiff gave 'notice' to said defendant that he would insist that the filing of bond constituted a waiver of the right to move to vacate the attachment; that on March 11th the defendant Dudley Lumber Company moved the court for, and procured, an extension of time in which to answer the complaint; that on March 26th the said defendant, by answer, pleaded to the merits; that on March 31, 1925, the same defendant moved the court for, and procured, an order referring certain issues to a special referee; that both plaintiff and defendant appealed from said order of reference, the defendant's notice of appeal bearing date April 20th; that plaintiff served his 'proposed case for appeal' on April 23d, to which defendant served 'notice of proposed amendments' and the 'case' was 'settled' by Judge Wilson by order dated May 16th; that defendant's 'proposed

case' was served on May 21st, to which plaintiff proposed certain 'amendments'; and that the 'case' upon defendant's motion, dated June 3d, was 'settled' by Judge Wilson by order dated June 13th.

The notice of motion to vacate the attachment bears date as of August 18, 1925, and was heard by me on the 22d of that month.

The chief contention of defendant, as I understand it, is that plaintiff, while in its employment, was not such a laborer or 'employee' as is protected in his wages by sections 5703, 5704, of volume 3, Code of 1922; that this fact affirmatively appears from the complaint and affidavit upon which the attachment was procured, and the motion to vacate was specifically based by defendant upon the alleged defects appearing upon the face thereof.

It was a further contention of the defendant that, since the statute did not give to this particular plaintiff a lien upon the output of the defendant's plant, it could not waive its right to move to vacate the attachment; that, since plaintiff never had a lien, nor any right of attachment, none could be conferred by waiver.

A final contention was that the sections in question are too indefinite as to what officer of the court is to issue the attachment therein authorized, and that said sections do not warrant the issuance of such attachment by the clerk of court.

"This last position is, in my opinion, wholly untenable, and was promptly overruled by me at the oral hearing.

"Upon conclusion of the lengthy oral argument upon the motion, which was presented with much force by opposing counsel, I indicated that I was then of the opinion that the complaint and affidavit failed to show that plaintiff was such an 'employee' as is protected in his wages by the statute in question, but that I desired to take under consideration the question of waiver or estoppel. I was then requested by plaintiff's attorneys to grant them the right to file with me affidavits to show 'that some right has attached to the other party (plaintiff) in consequence of such failure (to make a timely motion to vacate the attachment), which it would be inequitable now to divest, or some remedy omitted, or injury would ensue, which, but for the failure, would have been provided against,' as was intimated in Bates et al. v. Killian, 17 S.C. 553, might be ground for refusing to vacate an attachment under the general attachment law. This request was at first denied, but, upon further consideration, I granted plaintiff 10 days' time in which to file affidavits for that purpose, and allowed the defendant the same length of time in which to reply thereto.

"Upon careful consideration of the matter at some length, I am of the opinion that the plaintiff in this cause is not such an 'employee' as is protected in his wages or salary by sections 5703, 5704, Code 1922, and that the complaint and affidavit,...