The opinion of the Court was delivered by
Mr. Justice Gary.
The facts are thus set out in the record: “This is a proceeding -to establish and foreclose a mechanic’s lien, in which it was alleged that A. B. Metz, the petitioner, furnished material for' the erection of a building'. W. E. Critcher, one of the respondents, was the contractor, and the respondent, W. B. Oswald, was the owner of the lot upon which the building was erected. The respondent, W. E. Critcher, made no defense, but W. B. Oswald, the owner, interposed a demurrer, that the petition failed to state a cause of action against him, in that it was not alleged, that notice was given to him in writing or otherwise by the petitioner, before he furnished the material that he would hold him responsible for it. His Honor, George E. Prince, Circuit Judge, heard the demurrer and sustained it by order made March 30, 1908, but in his order, he allowed the petitioner to amend. The petition was duly amended, and served April 2, 1908, by alleging that the material was furnished at the -solicitation of W. E. Critcher, a person having authority from, or rightfully acting for, W. B. Oswald, the owner, and that it was furnished to the said W. E. Critcher, with the knowledge and approval of the said owner, W. B. Oswald. The case, from the first, was docketed by the petitioner on Calendar 1, and kept on this Calendar and never docketed on any other. No application was ever made by respondent for an order of reference nor transfer to any other Calendar than No. 1, no-r was it ever called to the attention of the Court that there was an error in docketing the case.
“At the December, 1908, term of Court, His Honor, John S. Wilson, presiding- Judge, called the case for trial on Calendar 1 without any objection 'by respondent or his counsel, both being- present, and empanelled a jury, and proceeded in the trial of the case, as a law case, and the jury rendered a verdict against the respondents, including the appellant, W. B. Oswald, for the amount prayed for in the petition. No order or decree was made by the Circuit Judge upon the law or facts in the case, or declaring a lien upon the lot and building, and directing- a sale of the same in satisfaction of the same, but on motion for a new trial, he made an order in the usual form in jury cases refusing the motion, and the petitioner entered judgment upon the verdict in the usual form, and from this judgment W. B. Oswald appeals. The alleged improper docketing and the claim of the appellant to exclusive equity jurisdiction, was not claimed as grounds in the motion for a new trial.”
1
The first of the exceptions is as follows: “That the action being solely within the jurisdiction of the court of equity, (the same being to establish and foreclose a mechanic’s lien), could not be submitted to a jury to decide all the issues of both law and fact, which was done in this case.”
The appellant erroneously assumes that the proceedings to foreclose a mechanic’s lien are equitable in their nature.
In
Murphy
v.
Valk,
30 S. C., 262, 267, the Court says: “The law as to the mechanic’s lien is purely statutory, and, therefore, in that sense the rights given by it may be called legal; but the act which brought them into existence also provided certain machinery for enforcing them, which in general character, partakes somewhat of 'the nature of equitable proceedings. The rule in such case is believed to be that in enforcing the rights so given the special machinery provided for that purpose must be strictly followed.”
Speaking in a general way of mechanic’s liens and others, Mr. Pomeroy, in section 1269, vol. 3, of his work on Equity
Jurisprudence, says: “Many of these liens are enforced by purely legal actions, and their effect resembles that produced by a legal attachment enabling the lienor to retain or recover possession of the thing and to sell it at execution sale under the judgment. Others are enforced by special proceedings authorized and regulated by statute. These two classes have no equitable character and do not come within the scope of equity jurisprudence. In some of the States, however, these liens, especially those charged upon real estate as mechanic’s liens, mining liens and the like, are enforced by ordinary equitable actions, resulting in a decree for a sale and distribution of the proceeds, identical in all their features, with suits for the foreclosure of mortgages by judicial sale. It is true, that these liens being created by statute, are legal in their essential nature, rather than equitable; but, so far as they are enforced by equitable actions, they have added a peculiar element to the equity jurisprudence in several States.”
In this State, however, mechanic’s liens are not enforceable by ordinary equitable actions.
In the case of
Tenney
v.
Water Power Co..,
67 S. C., 11, 17, 45 S. E., 111, this Court, after discussing a number of authorities, ruled: “That while the plaintiff may maintain an action, under the Code of Procedure, on his contract, ‘in like manner as if he had no security for his debt,’ the statute affords the only remedy for the enforcement of the lien, and he can not resort to an independent action under the Code for the foreclosure of such lien.”
The principle is thus stated in
Johnson
v.
Frazee,
20 S. C., 500, 502: “The argument of the appellant is that this proceeding is a civil action, and the mode of proceeding therein must be the same as in other civil actions under the Code, except that the statement of the cause of action is presented by petition instead of by complaint. Whether the proceeding is to be styled a civil action or a special proceeding, makes but little difference; whatever it may be, it is governed
by the act which provides it, and not by the Code. It is a statutory proceeding intended to enforce a specific statutory right, and it is appropriate only where the right is in question. Its character, nature and mode of procedure, therefore, depend upon the act which affords it.”
The second exception is as follows: “That no issues of fact were framed and submitted to the jury by order of the presiding Judge, which should have been done in accordance with Rule 28 of Circuit Court, if the petitioner desired any fact or facts to be passed upon by a juiy; but to the contrary, the whole case was submitted to the jury as a law case; and no opinion given by the presiding Judge by way of order or decree upon any of the issues of either the facts or the law, or upon the equities in the case.”
As the statute affords the only remedy for the enforcement of a mechanic’s lien, Rule 28 of the Circuit Court is inapplicable.
2
The third exception is as follows: “That the case was docketed only on Calendar 1 as a jury case, when it should have been docketed on Calendar 2, and all the issues of fact and law tried and determined by decree of the Circuit Judge.”
His Honor, the presiding Judge, was not requested to rule upon this question; therefore, it is not properly before this Court for consideration.
3
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The opinion of the Court was delivered by
Mr. Justice Gary.
The facts are thus set out in the record: “This is a proceeding -to establish and foreclose a mechanic’s lien, in which it was alleged that A. B. Metz, the petitioner, furnished material for' the erection of a building'. W. E. Critcher, one of the respondents, was the contractor, and the respondent, W. B. Oswald, was the owner of the lot upon which the building was erected. The respondent, W. E. Critcher, made no defense, but W. B. Oswald, the owner, interposed a demurrer, that the petition failed to state a cause of action against him, in that it was not alleged, that notice was given to him in writing or otherwise by the petitioner, before he furnished the material that he would hold him responsible for it. His Honor, George E. Prince, Circuit Judge, heard the demurrer and sustained it by order made March 30, 1908, but in his order, he allowed the petitioner to amend. The petition was duly amended, and served April 2, 1908, by alleging that the material was furnished at the -solicitation of W. E. Critcher, a person having authority from, or rightfully acting for, W. B. Oswald, the owner, and that it was furnished to the said W. E. Critcher, with the knowledge and approval of the said owner, W. B. Oswald. The case, from the first, was docketed by the petitioner on Calendar 1, and kept on this Calendar and never docketed on any other. No application was ever made by respondent for an order of reference nor transfer to any other Calendar than No. 1, no-r was it ever called to the attention of the Court that there was an error in docketing the case.
“At the December, 1908, term of Court, His Honor, John S. Wilson, presiding- Judge, called the case for trial on Calendar 1 without any objection 'by respondent or his counsel, both being- present, and empanelled a jury, and proceeded in the trial of the case, as a law case, and the jury rendered a verdict against the respondents, including the appellant, W. B. Oswald, for the amount prayed for in the petition. No order or decree was made by the Circuit Judge upon the law or facts in the case, or declaring a lien upon the lot and building, and directing- a sale of the same in satisfaction of the same, but on motion for a new trial, he made an order in the usual form in jury cases refusing the motion, and the petitioner entered judgment upon the verdict in the usual form, and from this judgment W. B. Oswald appeals. The alleged improper docketing and the claim of the appellant to exclusive equity jurisdiction, was not claimed as grounds in the motion for a new trial.”
1
The first of the exceptions is as follows: “That the action being solely within the jurisdiction of the court of equity, (the same being to establish and foreclose a mechanic’s lien), could not be submitted to a jury to decide all the issues of both law and fact, which was done in this case.”
The appellant erroneously assumes that the proceedings to foreclose a mechanic’s lien are equitable in their nature.
In
Murphy
v.
Valk,
30 S. C., 262, 267, the Court says: “The law as to the mechanic’s lien is purely statutory, and, therefore, in that sense the rights given by it may be called legal; but the act which brought them into existence also provided certain machinery for enforcing them, which in general character, partakes somewhat of 'the nature of equitable proceedings. The rule in such case is believed to be that in enforcing the rights so given the special machinery provided for that purpose must be strictly followed.”
Speaking in a general way of mechanic’s liens and others, Mr. Pomeroy, in section 1269, vol. 3, of his work on Equity
Jurisprudence, says: “Many of these liens are enforced by purely legal actions, and their effect resembles that produced by a legal attachment enabling the lienor to retain or recover possession of the thing and to sell it at execution sale under the judgment. Others are enforced by special proceedings authorized and regulated by statute. These two classes have no equitable character and do not come within the scope of equity jurisprudence. In some of the States, however, these liens, especially those charged upon real estate as mechanic’s liens, mining liens and the like, are enforced by ordinary equitable actions, resulting in a decree for a sale and distribution of the proceeds, identical in all their features, with suits for the foreclosure of mortgages by judicial sale. It is true, that these liens being created by statute, are legal in their essential nature, rather than equitable; but, so far as they are enforced by equitable actions, they have added a peculiar element to the equity jurisprudence in several States.”
In this State, however, mechanic’s liens are not enforceable by ordinary equitable actions.
In the case of
Tenney
v.
Water Power Co..,
67 S. C., 11, 17, 45 S. E., 111, this Court, after discussing a number of authorities, ruled: “That while the plaintiff may maintain an action, under the Code of Procedure, on his contract, ‘in like manner as if he had no security for his debt,’ the statute affords the only remedy for the enforcement of the lien, and he can not resort to an independent action under the Code for the foreclosure of such lien.”
The principle is thus stated in
Johnson
v.
Frazee,
20 S. C., 500, 502: “The argument of the appellant is that this proceeding is a civil action, and the mode of proceeding therein must be the same as in other civil actions under the Code, except that the statement of the cause of action is presented by petition instead of by complaint. Whether the proceeding is to be styled a civil action or a special proceeding, makes but little difference; whatever it may be, it is governed
by the act which provides it, and not by the Code. It is a statutory proceeding intended to enforce a specific statutory right, and it is appropriate only where the right is in question. Its character, nature and mode of procedure, therefore, depend upon the act which affords it.”
The second exception is as follows: “That no issues of fact were framed and submitted to the jury by order of the presiding Judge, which should have been done in accordance with Rule 28 of Circuit Court, if the petitioner desired any fact or facts to be passed upon by a juiy; but to the contrary, the whole case was submitted to the jury as a law case; and no opinion given by the presiding Judge by way of order or decree upon any of the issues of either the facts or the law, or upon the equities in the case.”
As the statute affords the only remedy for the enforcement of a mechanic’s lien, Rule 28 of the Circuit Court is inapplicable.
2
The third exception is as follows: “That the case was docketed only on Calendar 1 as a jury case, when it should have been docketed on Calendar 2, and all the issues of fact and law tried and determined by decree of the Circuit Judge.”
His Honor, the presiding Judge, was not requested to rule upon this question; therefore, it is not properly before this Court for consideration.
3
The fourth exception is as follows: “That the judgment was entered solely upon the verdict of the jury and not upon any order or decree of the Circuit Judge, which was in violation of all approved precedents and practices in equity cases in this State.”
Section 3025 of the Code of Taws provides, that “every material question of fact arising in the case shall be submitted to a jury, if required by either party, or deemed proper by the Court; and the trial shall be had upon a question stated or an issue framed, or otherwise, as the Court may order.”
This section, unquestionably, conferred upon the Circuit Judge the power to submit the question to the jury whether the appellant was due the petitioner the amount alleged in the petition.
But it did not authorize the entry of judgment on the verdict, nor make the verdict of the jury final as to the amount due under the mechanic’s lien. This duty was imposed upon the Court by section 3026 of the Code of Laws, which contains the provision that “the Court shall ascertain and determine the amount due each creditor who has a lien of the kind before mentioned upon the property in question.”
Section 3023 of the Code of Laws shows that the entry of judgment upon the verdict is not the remedy provided by the statute. That section is as follows: “If the lien is established in- favor of any of the creditors whose claims are presented, the Court -shall order a sale of the property to be made by such officer as may be authorized by law to make sales of property.”
In the case of
Tenny
v.
Water Power Co.,
67 S. C., 11, 45 S. E., 111, it was held that a counterclaim could not be interposed by the defendant in a proceeding under the -statute to enforce a mechanic’s lien-.
In the case of
Johnson
v.
Frazee,
20 S. C., 500, the Court had under consideration the question whether judgment may be given for the excess of the claim in the event that the property fails to pay -the debt. The Court, in disposing of that question said, “We think that -there was error in so much of the judgment below as allowed the respondent to have execution for any deficiency that might arise after applying the proceeds of sale -of the land. The extent of the remedy afforded by the act is to enforce the lien upon the property covered. There is no provision for judgment for the excess, if any be rendered, in the statutory proceeding provided.”
The Court assigns the following reason, in the case of
Tenney
v.
Water Power Co.,
67 S. C., 11, 17, 45 S. E., 111,
why the counterclaim could not be set up: “That as this Court has decided that a plaintiff or petitioner can not, under the statutory proceeding, recover a judgment
in personam,
against the defendant, there is no good reason why a defendant should be allowed to allege a state of facts that would enable him to recover a judgment
in personam
against the plaintiff.”
The judgment entered in the case under consideration was in form
in personam,
and any property of the appellant other than that covered by the alleged lien (not subject to homestead) was subject to sale under execution issued thereon. This was not contemplated by the statute as construed by the foregoing decisions. This exception is, therefore, sustained.
4
The fifth exception is as follows: “That the Circuit Judge erred in instructing the jury that section 3011 of the Civil Code, vol. 1, applied in this case, which provides, in substance, that the owner may prevent the attaching of any lien for labor or material furnished by giving notice, in writing, that he will not be responsible for it, when the action was brought under section 3008, which does not require any such notice, because under -this section there must- be a contract, either expressed or implied, between the owner and the party who furnishes the labor or material.”
Section 3008, of .the Code of Laws, is as follows:
“Any
person to whom a debt is due for labor performed or furnished, or for materials furnished, and actually used ini 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 pajunent of the debt so due to him.”
Section 3009 simply provides how a sub-contractor may obtain a lien.
Section 3010 declares that the mechanic’s lien shall not avail against existing mortgages.
Section 3011 is as follows : “The owner of any such building or structure in process of erection, or being altered or repaired,
other than the party by whom, or in whose behalf, a contract for labor or materials has been made,
may prevent the attaching of any lien for labor thereon, not at the time performed, or materials not than furnished, by giving notice, in writing, to the person performing or furnishing such labor or furnishing such materials that he will not be responsible therefor.”
The words which we have italicised show that the owner mentioned in section 3011, is not the same as the one mentioned in section 3008. Section 3011 refers to the owner who has acquired the rights of the owner alluded to in section 3008; and, that section was not intended to be trenched upon in any respect by section 3011.
His Honor, the presiding Judge, therefore, erred in his construction of these sections, and the exception raising this question is sustained.
5
The remaining exceptions present questions upon which the Circuit Court has not ruled, and are, therefore, not properly before this Court for consideration.
6
The appellants gave notice that they would ask that the judgment of the Circuit Court be sustained, upon additional grounds.
They, however, can not be considered, as there was no authority for entering the judgment.
It is the judgment of this Court, that the judgment of the Circuit Court be set aside, and that the case be remanded for a trial of the issues framed by the Court, and for such further proceedings as are required by the statute.
Mr. ChiEE Justice Jones
concurs in the result.