Neal v. Whisnant

Supreme Court of North Carolina

Neal v. Whisnant

145 S.E.2d 379, 266 N.C. 89, 1965 N.C. LEXIS 1395

CourtSupreme Court of North Carolina

DecidedDecember 15, 1965

StatusPublished

Cited by2 cases

This text of 145 S.E.2d 379 (Neal v. Whisnant) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Neal v. Whisnant, 145 S.E.2d 379, 266 N.C. 89, 1965 N.C. LEXIS 1395 (N.C. 1965).

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Opinion

HiggiNS, J.

The appeal presents these questions of law: (1) Did the document the plaintiff filed on September 6, 1963, comply with the statutory requirement that the lien “shall be filed in detail, specifying the materials furnished or the labor performed, and the time thereof?” G.S. 44-38. (2) If the claim was invalid because of the failure to give the required details, did the amendment filed October 5, 1963, giving the details, cure the defect, amend and relate back to the September claim?

The questions of law raised in the preceding paragraph are material and arise on this record. The contract was for a part of the construction work — not for a complete job for a fixed price. King v. Elliott, 197 N.C. 93, 147 S.E. 701. Hence, to be valid the lien should give the details required by the statute. Without question the plaintiff did not supply these necessary details and did not file any Exhibit “A” in his claim of September 6, 1963. The claim was [92]*92incomplete and did not constitute a valid lien. Saunders v. Woodhouse, 243 N.C. 608, 91 S.E. 2d 701; Assurance Society v. Basnight, 234 N.C. 347, 67 S.E. 2d 390; Jefferson v. Bryant, 161 N.C. 404, 77 S.E. 341; Cook v. Cobb, 101 N.C. 68, 7 S.E. 700; Wray v. Harris, 77 N.C. 77.

The court found the last work was done and the last material furnished on March 25, 1963. Time for filing a valid lien expired six months thereafter. The claim filed on September 6, 1963, was in time but was ineffective as a lien for failure to give the required details. The attempt to cure the defect by the amendment of October 4, 1963, came too late. The six months filing period had expired. The amendment came after time had run out. Under the lien statute time is material. Jefferson v. Bryant, supra.

The court committed error in holding that the liens filed by the plaintiff on September 6 and .October 4 constituted a valid claim or lien within the provisions of G.S. 44-1, and that the lien is superior to the Sennetts’ title and to the lien held by the defendants Fidelity Company, Trustee, and Piedmont Savings and Loan Association. The court likewise committed error .in adjudging that the Sennetts be taxed with any part of the costs in the Superior Court.

The judgment entered below, to the extent of its conflict with this opinion, is

Reversed.

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HiggiNS, J.

The appeal presents these questions of law: (1) Did the document the plaintiff filed on September 6, 1963, comply with the statutory requirement that the lien “shall be filed in detail, specifying the materials furnished or the labor performed, and the time thereof?” G.S. 44-38. (2) If the claim was invalid because of the failure to give the required details, did the amendment filed October 5, 1963, giving the details, cure the defect, amend and relate back to the September claim?

The questions of law raised in the preceding paragraph are material and arise on this record. The contract was for a part of the construction work — not for a complete job for a fixed price. King v. Elliott, 197 N.C. 93, 147 S.E. 701. Hence, to be valid the lien should give the details required by the statute. Without question the plaintiff did not supply these necessary details and did not file any Exhibit “A” in his claim of September 6, 1963. The claim was [92]*92incomplete and did not constitute a valid lien. Saunders v. Woodhouse, 243 N.C. 608, 91 S.E. 2d 701; Assurance Society v. Basnight, 234 N.C. 347, 67 S.E. 2d 390; Jefferson v. Bryant, 161 N.C. 404, 77 S.E. 341; Cook v. Cobb, 101 N.C. 68, 7 S.E. 700; Wray v. Harris, 77 N.C. 77.

The court found the last work was done and the last material furnished on March 25, 1963. Time for filing a valid lien expired six months thereafter. The claim filed on September 6, 1963, was in time but was ineffective as a lien for failure to give the required details. The attempt to cure the defect by the amendment of October 4, 1963, came too late. The six months filing period had expired. The amendment came after time had run out. Under the lien statute time is material. Jefferson v. Bryant, supra.

The court committed error in holding that the liens filed by the plaintiff on September 6 and .October 4 constituted a valid claim or lien within the provisions of G.S. 44-1, and that the lien is superior to the Sennetts’ title and to the lien held by the defendants Fidelity Company, Trustee, and Piedmont Savings and Loan Association. The court likewise committed error .in adjudging that the Sennetts be taxed with any part of the costs in the Superior Court.

The judgment entered below, to the extent of its conflict with this opinion, is

Reversed.

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145 S.E.2d 379, 266 N.C. 89, 1965 N.C. LEXIS 1395, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neal-v-whisnant-nc-1965.

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