Hursey v. Hassam & Pooley

Citations

• 45 Miss. 133

Syllabus

<p>1. Petition to enporce mechanic’s lien—objection to jurisdiction and statute op limitations must be pleaded.—The objection to the jurisdiction of the court and the defense of the statute of limitations cannot properly be made by demurrer to a petition to enforce a mechanic’s lien. As a general rule these defenses can be made only by special pleas.</p> <p>2. Whether lien exists is a question op law to be determined by the court. — Whether a lien exists in a particular case is a question of law for the court, and should not be submitted to the jury.</p> <p>3. Petitioner under mechanic’s lien law not entitled to general judgment, ip he has no lien. — If the plaintiff fails to establish his lien, in a proceeding under the statute to enforce a mechanic’s Hen, he is not entitled to a general judgment against the defendant, even though he was actuaUy served with process and appeared and pleaded.</p> <p>4. Statute op limitations—mutual and open current accounts— WHEN THE STATUTE OP LIMITATION COMMENCES TO BUN.—It ÍS error to instruct the jury that, when there is a running account between parties with no agreement about the time of payment, it is not considered due until made out and presented.</p> <p>5. Same—mechanic’s lien barred, ip six months elapse apter claim, due, bepore suit brought. — On the trial of issue joined upon the defense of the statute of limitations in a proceeding to enforce a mechanic’s lien, it is erroneous to refuse to instruct the jury, at defendant’s request, that they should find for the defendant, if the suit was not commenced within six months after the claim was due and payable.</p> <p>6. Weight of evidence a question for the jury—verdict should be FOR DEFENDANT IF THEY BELIEVE FROM THE EVIDENCE THE CLAIM WAS PAID before suit. —Upon trial of the defense of payment, where there is evidence tending to prove payment of the claim sued on, it is erroneous to refuse to instruct the jury, at the instance of defendant, “that the jury are .the judges o