Opinion
15505
February 16, 1943.
Before G. DEWEY OXNER, J., Pickens County, April, 1941. Affirmed.
Action by Nimmons-Adams Lumber Company, a co-partnership composed of R.K. Nimmons and A.M. Adams, against Eugene Whitten, W.B. Rogers, Seneca Hardware Company, B.R. Lawrence, and Fort Mill Federal Savings Loan Association of Clemson, and others, to enforce a Mechanic's Lien, wherein the defendant Eugene Whitten and others set up various Mechanics' Liens against the property involved, and pursuant to agreement the property was sold free of all liens, and all claimants were paid except Eugene Whitten, and a trial was had to determine the amount of his claim, which resulted in a verdict for $1,900.00. Subsequently Eugene Whitten died, and Mrs. Rosa B. Whitten, as administratrix, was substituted as a party in lieu of the deceased Eugene Whitten. From a judgment directing that the sum of $1,900.00 be paid to the Administratrix or her attorneys, W.B. Rogers appeals.
The decree of CIRCUIT JUDGE G. DEWEY OXNER, adopted as the opinion of the Court, follows:
The defendant, Mrs. Rena B. Whitten, as administratrix of the estate of Eugene Whitten, deceased, is asking that the Court pass an order directing the Master for Pickens County to pay to her or her attorneys the sum of $1,900.00. The proceedings leading up to this controversy are somewhat complicated but, briefly stated, are as follows:
Some time during the latter part of 1936 or the early part of 1937, Eugene Whitten undertook to construct for W. B. Rogers two houses in Pickens County near Clemson College. When said houses were almost completed, a controversy ensued between Whitten, the contractor, and the owner, Rogers. Also there were certain parties furnishing material who claimed that they had not been paid. As a result, the present action was commenced in April, 1938, for the purpose of foreclosing a mechanic's lien held by the plaintiff and in this action the owner, the contractor, certain other material men, and the Building Loan Association, who held a mortgage on the property, were made parties defendant.
In their answers, Whitten, as well as the other parties doing work or furnishing material, set up the various mechanics' liens which they claimed they held over said property. Thereafter, in the summer of 1938, all the parties through themselves or their attorneys entered into a consent decree, which was prepared by Julien D. Wyatt, Esq., wherein the Master for Pickens County was directed to sell said property free of all liens or claims and was further directed to pay from the proceeds thereof the mortgage indebtedness and the liens of all claimants except the claim by Whitten. In this decree it was provided that the proceeds after said payments above mentioned, should be held subject to the further order of the Court.
The property was thereafter sold and purchased by the wife of the defendant, W.B. Rogers, who took title thereto. The issue between Whitten and Rogers, by the terms of said decree, was referred to the Master for Pickens County to take and report the testimony. Some testimony was taken before the Master, but before it was completed, at the suggestion of Mr. Wyatt, the issue was withdrawn before the Master and, by consent of the attorneys for Whitten and Rogers, transferred to the Court of Common Pleas to be passed upon by Court and jury.
Thereafter, on February 24, 1941, the case was tried before his Honor, Judge Grimball, and a jury resulting in a verdict by Whitten against Rogers for the sum of $1,900.00. Motion for new trial on the part of Rogers was marked heard by consent and thereafter on April 9, 1941, argued before Judge Grimball, who, on the same date, passed an order refusing the motion. The defendant Rogers gave notice of appeal to the Supreme Court, later perfecting same by having the record transcribed and the case on appeal agreed upon. The case was tentatively set down for hearing in the Supreme Court for the December term, 1941. The appeal to the Supreme Court was dismissed by order of the Clerk of that Court on November 25, 1941, on account of the failure of the appellant to file his brief within the time prescribed by the rules.
Thereafter, on November 29, 1941, I issued an order directing the Master to pay Whitten, or his attorneys, the sum of $1,900.00, the amount found by the jury. Subsequently, counsel for Rogers gave notice of a motion before me on December 13, 1941, for an order vacating the order of November 29, 1941, upon the ground that counsel for Rogers had no notice of the application for said order. On December 13, 1941, the day set for the hearing of said motion, by consent of all counsel, I passed an order vacating the order of November 29, 1941, upon the ground that it was passed without notice to opposing counsel.
In the agreed statement for appeal to the Supreme Court, the following appears: "The issue between Rogers and Whitten was reserved for later decision, the Master holding the balance of the proceeds of sale, amounting to $2,581.37. The issue was referred to the Master, who took certain testimony, but, thereafter, by consent of counsel, the issues were submitted to a jury."
Counsel for Whitten entered up judgment against Rogers on the verdict of the jury and thereafter, on January 10, 1942, counsel for Rogers moved before me for an order vacating the alleged judgment on the verdict, upon the ground that Whitten had died intestate on April 15, 1941, and there had been no substitution in his stead and upon the further ground that no judgment in personam could be entered on said verdict. Before this motion was heard, on January 3, 1942, I issued an order, after due notice, substituting the administratrix as a defendant in lieu of her husband, Eugene Whitten, who had died. Counsel for Rogers stated to the Court that he had no objection to this order of substitution.
Thereafter, attorneys for the administratrix gave notice of a motion before me, on January 10, 1942, for an order directing the Master to pay over to the administratrix said sum of $1,900.00, the amount of judgment entered up in said cause, together with the costs. This motion was not taken up before me, on account of my being out of the Circuit, until the latter part of July, 1942. The motion was duly argued. At the hearing of this motion, counsel for both parties referred to the various proceedings including the entire Transcript of Record and other proceedings.
After considering the matter for a few days, I took the matter up with counsel on the question as to whether or not all of those papers were properly before me. Mr. Wyatt stated that he did not understand that they were. I suggested to counsel that to remove any doubt about the matter that they agree upon a date and I would hear the entire matter on the merits, with leave on the part of either party to offer the records or other testimony as they may deem advised. The attorneys agreed on said hearing for August 6, 1942. At this hearing, the Court Stenographer was present and the record will disclose the various papers and documentary evidence which was offered.
The question to be determined by the Court is whether, on this showing, the administratrix is entitled to an order paying over to her said sum of $1,900.00. The record shows that the proposed order for the payment of said amount is opposed by counsel for Rogers upon the following grounds, briefly stated: That the administratrix has no right to enter up a judgment on the verdict found by the jury; that the action is one for a mechanic's lien and only Judge Grimball, the presiding Judge, had jurisdiction to have made a final decree in the case, and, he having not done so, it is necessary that there be a new trial on the entire matter; that there has been no determination by the Court of the amount due Whitten or any adjudication that he has a mechanic's lien; that the testimony taken before Judge Grimball was on a different theory than that set forth in the mechanic's lien; and that there is no proof that the lien was filed within ninety days after the work was completed.
In determining the issue before me, it will be necessary to refer in more detail to the consent order which was asked and the trial which was had before Judge Grimball. Under the terms of this consent order, the parties stipulated as follows with reference to the claim of Whitten: "By way of answer the defendant, Eugene Whitten, has set up a mechanic's lien which is admitted to be junior to the other three mechanic's liens and to the advancements on the mortgage. The right to this lien and the right to its foreclosure is denied by the defendant, W.B. Rogers, and the amount due upon the lien filed by Eugene Whitten is the disputed issue in this case."
The decree further stipulated: "The sale of the premises is ordered subject to the future determination of the respective rights of W.B. Rogers and Eugene Whitten, and it is ordered that such lien as Eugene Whitten may have over the premises shall be transferred to the proceeds of sale of the premises."
The order further stipulated: "It is expressly ordered that this sale shall be without prejudice to the rights of either W.B. Rogers and Eugene Whitten, and the issue between them is hereby referred to the Master in Equity of Pickens County to take testimony thereon and report the same to the Court."
In his charge to the jury, Judge Grimball, in his usual characteristic clearness, stated: "Now, that is the controversy. Does Mr. Rogers owe Mr. Whitten anything; and, if so, how much does he owe him?"
From the reading of the entire record of the case tried before Judge Grimball, including his charge to the jury, it is clear that Judge Grimball regarded as the only issue before him the question of what amount, if any, Rogers owed to Whitten. The case was tried on that theory before Judge Grimball and in instructing the jury as to the form of the verdict, he directed them in the usual form where one seeks to recover an indebtedness against the other. The jury found in favor of Whitten against Rogers for the amount of $1,900.00. Counsel for Rogers noted a motion for new trial on the ground that the evidence was insufficient to sustain the verdict and that the verdict was excessive. No other question was raised before Judge Grimball or no other issue mentioned to him by counsel for either party. The motion for new trial was marked heard by consent and argued before him several months later, when he passed an order refusing same. At no time did anyone suggest to him that there was any other issue except that which had been submitted to the jury.
I think it is clear from the foregoing that counsel for Rogers is not now in a position to raise issues other than that which was tried before Judge Grimball. It is evident that by consent of the parties, the entire matter relating to the property and the mechanic's lien thereon was adjudicated in the consent order with the exception of the question as to whether Rogers owed Whitten anything on account of said construction and, if so, what amount.
It seems to me that this is the only reasonable explanation of the various proceedings. Such evidently was the interpretation placed upon same by Judge Grimball and it seems to me that such was the interpretation placed upon same by counsel, as evidenced by the manner in which all proceeded. It will be observed that the consent order provided "the amount due upon the lien filed by Eugene Whitten is the disputed issue in this case."
After referring the issue between Rogers and Whitten to the Master, under the agreed statement on appeal, it is said that "by consent of counsel the issues were submitted to a jury." Thus it would appear that all matters which could have been determined by the Master or were in any way before the Master were submitted to the jury. If counsel for Rogers felt that there were other matters which should have been disposed of, such should have been called to the attention of Judge Grimball as, under the circumstances having remained silent until this time, he will be regarded as having waived same.
It is obviously true that no judgment can be entered on the verdict of the jury and the judgment so entered will be regarded as a nullity. To accept the contention of counsel for Rogers in this case would result in the whole proceeding before Judge Grimball being regarded as a nullity and a new trial had of the entire issues in the case, including the amount, if any, due Whitten by Rogers and that at a time when Whitten is dead. If the order of Judge Grimball refusing the motion for a new trial was not a final disposition of all matters before the Court, then I know of no theory upon which counsel for Rogers could have appealed to the Supreme Court.
He appealed from the order refusing a new trial, and "from the judgment entered or to be entered in this case." He obviously must have regarded the trial before Judge Grimball as a final determination of the matters before him. Otherwise, there could have been no basis of an appeal to the Supreme Court. If the case was tried before Judge Grimball on a theory different from that set out in the mechanic's lien filed, it was clearly the duty of counsel to have called that to the attention of the Court. While I regard that all disputed issues have been settled in the trial before Judge Grimball, even though the matter had been called to the attention of Judge Grimball, he could have issued no other order under the circumstances than to pay over this money.
It is urged that there has never been any adjudication by the Court that Whitten has a mechanic's lien over the premises. For the reasons hereinabove pointed out, all issues growing out of the mechanic's lien have been waived except the amount, if any, due. But if I were to consider the question of the establishment of a lien, it appears that the jury has determined the amount, which amount was approved by the trial Judge. It is undisputed that all of this material and labor went into these two houses and under the decisions of the Supreme Court, "the instant the labor or material is furnished, that instant the lien is created betwixt the two parties to the transaction." Williamson v. Hotel Melrose, 110 S.C. 1, 96 S.E., 407, 414.
In the case of Wilkie v. Murphy, 88 S.C. 415, 70 S.E., 1028, 1029, it was contended on appeal that an action before a magistrate was one to enforce a laborer's statutory lien, which was equitable in nature and, therefore, the magistrate had no jurisdiction to try same. The Court said in disposing of this contention: "This question does not properly arise, for, whatever may have been the theory of Magistrate Kennerly when he issued the summons, the parties, all before Magistrate Austin by their agreement, have treated the action as one to recover the amount of the laborer's wages"
In this connection, also see Mortimer v. McKeithan Lumber Corporation, 127 S.C. 266, 120 S.E., 723; Hussman Refrigerator Supply Co. v. Cash Carry Grocer, Inc., 134 S.C. 191, 132 S.E., 173; Jordan v. State Highway Department, 188 S.C. 83, 198 S.E., 174. Counsel for Rogers relies on the case of Metz v. Critcher, 83 S.C. 396, 65 S.E., 394. I do not find this case inconsistent with the conclusions herein reached, but, on the contrary, the opinion of Mr. Justice Woods tends to support this conclusion.
Counsel for Rogers states that it was never his intention to abandon any other issues and, knowing counsel as I do, I would not for one moment question any statement that he makes or the bona fides of any position which he took, but the case must be decided upon the reasonable interpretation of what was actually done and what was reasonably calculated to impress opposing counsel and the Court of the issue to be determined.
It is therefore, ordered: That the Master for Pickens County be, and he is hereby, required to pay over to the administratrix, or her attorneys, from the funds now in his hands, the sum of $1,900.00, together with any costs that may have accrued and that the balance of the funds in his hands be paid over to the defendant Rogers or his attorney.
There may be some question that there should also be added to the foregoing amount of $1,900.00 interest thereon, but inasmuch as such was not requested in the notice or the hearing before me, counsel for the administratrix states that they will not insist on same.
Mr. Julien D. Wyatt, of Pickens, Counsel for Appellant, cites: As to the requirement of "Strict Compliance" in asserting Statutory Remedies: Boisot on Mechanics' Liens, Sec. 624, page 651, and Sec. 634, page 660; Phillips on Mechanics' Liens (2nd Ed.), page 694; 170 S.C. 272, 170 S.E., 341; 101 S.C. 350, 85 S.E., 903; 96 S.C. 24, 79 S.E., 635; 25 R.C.L., 283; 20 N.C. 412; 128 N.D., 115, 30 L.R.A. (N.S.), 1219; 30 S.C. 262, 9 S.E., 101; 67 S.C. 11, 45 S.E., 111; 20 S.D., 186, 105 N.W., 279; 20 Neb. 162, 29 N.W., 295; 14 D.L.R., 146; 65 Cal., 340, 4 P., 195; 83 S.C. 396, 65 S.E., 394; 40 C.J., 485; Phillips on Mechanics' Liens, 704; Boisot on Mechanics' Liens, Sec. 649. As to Jurisdiction: 84 S.C. 37, 40, 65 S.E., 950; 51 S.C. 433, 29 S.E., 202; 54 S.C. 473, 32 S.E., 503; 60 S.C. 568, 30 S.E., 188; 108 S.C. 183, 184, 82 S.E., 414; 104 S.C. 390, 395, 89 S.E., 396; Black on Judgments, Vol. 1, Sec. 154, page 173, also Secs. 179 and 180; Code 1932, Sec. 8751. Messrs. Mann Mann; of Pickens, Counsel for Respondent, cite: As to Waiver of Statutory Requirements: 88 S.C. 415, 70 S.E., 1028.
February 16, 1943.
After a careful study and consideration of the record in this case, in the light of the issues made by the exceptions, we are of the opinion that the Circuit Court, in its well-considered decree, correctly decided the case. We adopt that decree as the judgment of this Court. Let it be reported.
Judgment affirmed.
MR. CHIEF JUSTICE BONHAM, MESSRS. ASSOCIATE JUSTICES FISHBURNE and STUKES, and CIRCUIT JUDGES L.D. LIDE and E.H. HENDERSON, ACTING ASSOCIATE JUSTICES, concur.