Smith v. Cantrell

41 Jones & S. 466

Opinion

Per Curiam.

By the affidavit in the papers on appeal, this proceeding to foreclose a mechanic’s lien was begun in the month of June, 1875. The act of May 17, 1875,—which provides for the discharge of a mechanic’s lien upon a bond being filled,—expressly enacts that its provisions shall not affect any proceedings taken before July 1, 1875. It is probable that this was not pointed out to the learned judge below, as it was only orally stated before the court on appeal, and is not upon the brief of appellant’s counsel. Its effect clearly is to preserve the mechanic’s lien in this case.

It is also suggested that the proceeding was in fact taken upon July 7, 1875. If this be so, it would be necessary to re-open the motion below, for in the present affidavits it is stated that the action was begun in June, 1875.

The order appealed from should be reversed, with ten dollars costs and disbursements to be taxed.