Waring v. Miller Batting &c. Co.

Citations

• 36 S.C. 310
• 15 S.E. 132
• 1892 S.C. LEXIS 67

Syllabus

<p>1. Distinct Offices — Demurrer—Mechanic's Lien. — The statute declares that a mechanic's lien shall be dissolved unless the claimant files, within 90 days after work completed, a statement of his claim in the office of the register of mesne convejmnces for the county, to be recorded by such officer in a book kept for the purpose. The statute also declares that the clerk of court shall be register of mesne conveyances. A petition to enforce a mechanic’s lien alleged that a statement of the claim had been filed with the clerk of court, and had been recorded by him in a book kept for the purpose. The debtor demurred to this petition on the ground that in the absence of an allegation that the statement had been filed with the register of mesne conveyances, the petition failed to state facts sufficient to constitute a cause of action. This demurrer having been sustained by the Circuit Judge, his ruling was affirmed on appeal, a majority of the court, however, being, of opinion that there was nothing substantial in the objection, and that the demurrer might have been overruled.</p> <p>2. Amendments. — A motion to amend is ofttimes addressed to the discretion of the Circuit Judge, but if refused on erroneous legal grounds, the order of refusal should be reversed on appeal.</p> <p>3. Ibid. — Mechanic's Liens. — A petition to enforce a mechanic’s lien which alleged that the statement had been filed with the clerk of court, having been hold bad on demurrer by reason of this allegation, the Circuit Judge refused petitioner's motion to amend by inserting an allegation of a filing with a proper officer, basing his refusal upon the idea that-the amendment would revive a lien already lost, and would be a contradiction of its original allegation. Eeld, that this was error, and that the petitioner should have been allowed to amend.</p>