Tenny v. Anderson Water, Light & Power Co.

• Decision Date: 07 July 1903
• Citation: 45 S.E. 111,67 S.C. 11
• Parties: TENNY v. ANDERSON WATER, LIGHT & POWER CO. et al.
• Court: South Carolina Supreme Court

45 S.E. 111

67 S.C. 11

TENNY v. ANDERSON WATER, LIGHT & POWER CO. et al.

Supreme Court of South Carolina

July 7, 1903

Appeal from Common Pleas Circuit Court of Anderson County; Watts Judge.

Proceeding to enforce a mechanic's lien by Geo. A. Tenny against the Anderson Water, Light & Power Company, the State Trust Company, and the Morton Trust Company. From circuit order plaintiff appeals. Modified.

Mordecai & Gadsden, Quattlebaum & Cothran, and Bonham & Watkins, for appellant. Tribble & Prince and Haynesworth, Parker & Patterson, for respondents.

GARY A. J.

On the 9th day of May, 1902, the plaintiff caused a summons in the usual form and a "petition or complaint to enforce mechanic's lien" to be served on the defendant Anderson Water, Light & Power Company. The amount alleged to be due under the lien is $28,967.82. The Anderson Water Light & Power Company answered, setting up several defenses First, that the petitioner had failed and refused to comply with his contract; second, that the statement attached to the lien is fraudulent; and, third, a counterclaim for damages alleged to have been sustained by the Anderson Water, Light & Power Company by reason of the failure of the petitioner to construct the dam in a proper manner, amounting to $87,600. The plaintiff replied to the counterclaim, and denied its allegations. Subsequently the plaintiff gave notice of a motion to strike out so much of the defendant's answer as set up a counterclaim on the following grounds , to wit: "(1) Because the said counterclaim is frivolous, as appears on the face of the answer. (2) Because a counterclaim cannot be interposed or set up in this proceeding. (3) Because the court had no jurisdiction in this proceeding to entertain, hear, determine, or give judgment upon a counterclaim against the plaintiff." Upon hearing the motion, his honor the circuit judge ordered that said motion "be and is hereby refused, without prejudice to the right of the plaintiff to renew his motion to restrict or limit the extent of the recovery under said counterclaim to the amount claimed under the plaintiff's complaint herein, so as to extinguish the same, if he be so advised, without intimating any opinion on this latter point." The plaintiff appealed from said order upon exceptions which practically present the question whether a counterclaim can be set up in a proceeding to enforce a mechanic's lien.

As the solution of this question is dependent upon the terms of the statute, we will quote such parts thereof as are material to the consideration of the question. The sections correspond with those in the Code of Laws:

"Sec. 3008. Any person to whom a debt is due for labor performed or furnished, or for materials furnished and actually used in the erection, alteration or repair of any building or structure upon any real estate by virtue of an agreement with or by consent of the owner of such building or structure, or any person having authority from or rightfully acting for such owner in procuring or furnishing such labor or materials, shall have a lien upon such building or structure and upon the interest of the owner thereof in the lot of land upon which the same is situated, to secure the payment of the debt so due to him, and the costs which may arise in enforcing such lien under this chapter except as is provided in the following sections."

"Sec. 3014. Unless a suit for enforcing the lien is commenced within six months after the person desiring to avail himself ceases to labor or furnish labor or material for such building or structure, the lien shall be dissolved.

Sec. 3015. The lien may be enforced by petition to the court of common pleas for the county where the building or structure is situated. The petition may be filed in term, or in the clerk's office in vacation, and the date of the filing shall be deemed the commencement of the suit."

"Sec. 3017. The petition may be served with the summons or filed with the clerk, and shall be returned and entered as other civil cases.

Sec. 3018. The petition shall contain a brief statement of the contract on which it is founded and of the amount due thereon, with a description of the premises subject to the lien, and all other material facts and circumstances, and shall pray that the premises may be sold and the proceeds of the sale be applied to the discharge of the demand.

Sec. 3019. The court may at any time allow either party to amend his pleading as in other civil actions."

"Sec. 3021. The court in which the petition is entered shall order notice to be given to the owner of the building or structure, that he may appear and answer thereto at a certain day in the same term or at the next term, by serving him with an attested copy of the petition with the order of the court thereon, fourteen days at least before the time assigned for the hearing, and the court shall also order notice of the filing of the petition to be given to all other creditors who have a lien of the same kind upon the same estate by serving them with a copy of the last mentioned order in the like manner."

"Sec. 3024. At the time assigned for the hearing, or within such further time as the court allows for that purpose, every creditor having a lien of the kind before mentioned upon the same property may appear and prove his claim, and the owner and each of the creditors may contest the several claims of every other creditor, and the court shall hear and determine them in a summary manner, either with or without jury, as the case may require."

"Sec. 3026. The court shall ascertain and determine the amount due to each creditor who has a lien of the kind before mentioned upon the property in question; and every such claim due absolutely and without any condition altogether not then payable, shall be allowed with a rebate of interest to

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