Padgett v. Cunningham

• Citation: 153 S.E. 280,156 S.C. 356
• Decision Date: 08 May 1930
• Docket Number: 12917.
• Parties: PADGETT v. CUNNINGHAM et al.
• Court: United States State Supreme Court of South Carolina

153 S.E. 280

156 S.C. 356

PADGETT v. CUNNINGHAM et al.

No. 12917.

Supreme Court of South Carolina

May 8, 1930

Appeal from Common Pleas Circuit Court of Hampton County; Wm. H Grimball, Judge.

Action by J. S. Padgett against J. H. Cunningham and others. Judgment for plaintiff, and defendants appeal, Ida G Padgett, as administratrix of the estate of J. S. Padgett deceased, who had died pending the appeal, being duly substituted as party plaintiff.

Affirmed.

George Warren, of Hampton, and R. P. Searson, of Allendale, for appellants.

Hugh O. Hanna, of Hampton, and R. M. Jefferies, of Walterboro, for respondent.

STABLER J.

This is an action upon a bond given under the provisions of sections 5703 and 5704 of volume 3 of the 1922 Code. J. S. Padgett the original plaintiff, having died pending the appeal, Ida Padgett, as administratrix of his estate, was duly substituted as party plaintiff.

On or about July 31, 1926, prior to the commencement of this suit, J. S. Padgett brought an action against the Estill Lumber Company, Inc., and procured an attachment to be issued against certain manufactured lumber, the output of the company, including lumber at its planing mill site and lumber from two sawmills operated by the plaintiff on lands known as the Rentz tract, the attachment being based upon his claim of a laborer's lien under the sections of the Code above referred to. The company replevied the lumber, the defendants in this action becoming sureties on the bond. The complaint in the former action contained two causes, first, a claim for services rendered in manufacturing timber cut by the two sawmills on the Rentz tract, and, second, a cause for the enforcement of plaintiff's alleged laborer's lien under the statute. The defendant, on August 18, 1926, answered by way of general denial, and, on February 12, 1927, served notice to have an amended answer allowed on call of the case for trial, which amended answer was so allowed.

When the cause came up for trial before Judge S.W. G. Shipp, at Hampton, he held that the first cause of action was for a jury, but that the second cause was for the court. The first cause was then tried, the plaintiff obtaining a verdict for $850.

Thereafter, on March 1, 1927, the defendant company served notice on the plaintiff that it would move before Judge Shipp at Beaufort, on March 7, 1927, to have the equitable issues of the case, involved in the second cause of action, heard and determined. Upon a hearing of the matter, at Orangeburg, the motion for vacation of the attachment having been withdrawn, he issued an order holding that there was no necessity to determine the second cause of action, for the reason that the rights of the plaintiff had been transferred to the bond, the output of the mill having been disposed of and not being available. No appeal was taken from this order.

The present action was commenced on December 17, 1927. After service of the answer, the plaintiff moved before Judge M. L. Bonham, at Beaufort, to strike the answer, on grounds which need not be here stated. This motion being refused, the plaintiff demurred to the answer on practically the same grounds. The demurrer was overruled by Judge J. Henry Johnson, on August 21, 1928. The case was tried before Judge Wm. H. Grimball and a jury, at Hampton on October 4, 1928, a verdict being directed in favor of the plaintiff, J. S. Padgett, for $946.64. The appeal involves numerous exceptions to these various orders, but under our view of the case it will be necessary to consider only the exception imputing error to Judge Grimball in directing a verdict for the plaintiff.

It appears from the record that J. S. Padgett and the Estill Lumber Company entered into a contract under which Padgett was to manufacture into lumber the timber on the Rentz tract, and that the company was to pay him therefor at the rate of $8.25 per thousand feet, Padgett to furnish the labor, saw bits, files and oil, and the company to furnish the mules, carts, and mill equipment. The appellants in the present case strenuously contend that Padgett was not such a laborer within the purview of sections 5703 and 5704 as to be entitled to a laborer's lien as against the lumber company. The plaintiff urges that, even if Padgett was not such a laborer, the defendants, by the acts of their principal in the former case, are estopped to set up that defense. Judge Grimball agreed with this position, and his order directing a verdict for the plaintiff was predicated upon that view.

In the argument here both sides cited the case of Moody v Dudley Lumber Company, 138 S.C. 478, 137 S.E. 141, 142. The proceedings in that case are thus summarized in Judge Johnson's decree, which was adopted by this court: "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 reverse, 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 dependant, by answer, pleaded to the merits; that on March 31, 1925, the same defendant moved ...