Sheffield Furnace Co v. Witherow
| Decision Date | 10 May 1893 |
| Docket Number | No. 190,190 |
| Citation | 149 U.S. 574,13 S.Ct. 936,37 L.Ed. 853 |
| Parties | SHEFFIELD FURNACE CO. v. WITHEROW |
| Court | U.S. Supreme Court |
Statement by Mr. Justice BREWER:
On May 27, 1886, the appellee, plaintiff below, made a proposition to defendant to construct on its premises a blast furnace, for the sum of $124,000; $80,000 to be paid on monthly estimates as the work progressed; the balance to be secured, 'said security to be either a mechanic's lien or first mortgage on all the furnace company's interests in Sheffield, * * * at my option.' This proposition was accepted on June 2d. The work was completed and accepted on April 24, 1888. On June 27, 1888, plaintiff filed in the office of the probate court of the proper county a statement for a mechanic's lien, in conformity with the provisions of the state statute. In this statement the furnace is stated to be situated at Sheffield, Colbert county, Ala., on a site containing about 20 acres, described as follows: 'Twenty acres of land in fractional section 29, * * * contiguous to the city of Sheffield,' etc. On September 5, 1888, plaintiff filed his bill in the circuit court of the United States for the northern district of Alabama to foreclose this mechanic's lien. The bill avers that a contract was entered into for the construction of the furnace, that the amount due was $63,279.43, that a statement of lien had been filed, and prayed for foreclosure and for general relief. In the bill the contract was not set out at length, but it was alleged that it was in writing, and would be produced at the hearing, if necessary. Attached to the bill of complaint was the statement filed in the probate court. A subpoena was duly served upon the defendant on September 6th. On October 1st the defendant applied for and received a copy of the bill. On October 3d it filed a paper which it called a demurrer, but which did not have the certificate of counsel or the affidavit of defendant essential to a demurrer, as required by equity rule 31. On the rule day in November (November 5th) a decree pro confesso was entered, and on December 19th a final decree was also entered, finding the amount due as claimed, the existence of a lien upon the twenty acres, and ordering a foreclosure and sale. At the final hearing the plaintiff produced the lien papers, which were filed in the office of the probate court, the contract between the parties, a certificate from the superintendent of the company defendant of compliance with the terms of the contract, and an affidavit of counsel for the plaintiff to the genuineness of these documents. At the next term, and on February 4, 1889, a motion and petition were filed by defendant in the circuit court to set aside the final decree, which was overruled on the 15th of February, 1889. An appeal to this court was duly perfected.
T. R. Roulhac, R. W. Walker, and H. C. Tompkins, for appellant.
Henry B. Tompkins, Wayne MacVeagh, and A. H. Wintersteen, for appellee.
Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.
Inasmuch as the so-called 'demurrer' was fatally defective, in lacking the affidavit of defendant and certificate of counsel required by rule 31, there was no error in disregarding it, and entering a decree pro confesso, at the November rules. Equity rule 18; National Bank v. Insurance Co., 104 U. S. 54, 76. And such decree after the November rules would entitle the plaintiff to a final decree, as taken on December 19th, (equity rule 19; Thomson v. Wooster, 114 U. S. 104, 5 Sup. Ct. Rep. 788,) unless something had taken place intermediate to take away such right. It appears that on the 14th day of November the plaintiff filed an amendment to the original bill, which amendment consisted, substantially, of allegations that the 20-acre tract was within the limits of the city of Sheffield, and that the furnace and its appurtenances were in the middle of said tract, and occupied more than 1 acre of land, and required, for convenience and profit, the whole of the tract; upon which appears, after the indorsement of the clerk of its filing, a further indorsement, as follows:
This proceeding on the part of the plaintiff, it is insisted, destroyed his right to take the final decree, but this is a mistake. While, under equity rule 28, the plaintiff might, after a copy of the bill had been taken out of the office by the defendant, and before plea, answer, or demurrer, amend the bill without order of the court, yet, before he could claim any benefit of such amendment, he was required to pay to the defendant the costs occasioned thereby, and without delay furnish it a copy thereof free of expense, with full reference to the places where the amendments were to be inserted. As he had done neither of these things, he could claim no benefit from the filing of the amended bill, and when he entered upon it a withdrawal he left the case to stand as though no amendment had been attempted. Besides, the defendant, being in default, was in no position to take advantage of the plaintiff's action in withdrawing the amendment. There was therefore nothing erroneous in the matter of procedure,—nothing which would compel the court, at a subsequent term, to set aside the decree.
While in this motion and petition there are stated many matters in which it is claimed there was error on account of which the decree should be set aside, and the defendant given leave to plead, and while there is a general allegation that it has a full, perfect, and meritorious defense to the demand set up in the bill, yet it is not alleged that the contract for the building of the furnace was not made as stated, or that the statement for lien was not filed, or that the amount claimed to be due was not due and unpaid; so that the case is presented of an effort on the part of defendant to avoid or delay the payment of a just debt. Of course, it need not be said that under such circumstances a court of equity will not strain a point to assist a defendant. It is insisted in...
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