| U.S. Circuit Court for the District of South Carolina | Dec 4, 1896
These two cases have been consolidated, and were heard together. The first-named case was instituted in the court of common pleas for Barnwell county, and has been duly removed into this court. The second case was a bill filed in this court by W. B. Strang, Jr., & Co., in behalf of themselves jand all other creditors. The facts are these: W. B. Strang, Jr., and Co., are railroad contractors. They entered into a contract with the Greenwood, Anderson & Western Railroad Company to construct a road from Seivern to Greenwood, and further to carry on the road to-Batesburg, S. C. The work was to be paid for, part in cash, and part in bonds. For the purpose of this opinion, a detailed statement of the contract is not necessary. It is sufficient to say that, after a very large portion of the work was performed, differences arose between the contractors and the railroad company, which led to a rescission of the contract, with a large claim for work done on the part of the contractors. Thereupon the contractors recorded in the proper offices of Barnwell and Lexington counties a mechanic’s lien on the railroad property, and claimed the right to enforce it; whereupon the proceedings first named were instituted by the railroad company, seeking an injunction against the contractors, restraining them from setting up, seeking to enforce, or proceeding under their mechanic’s lien. The state court granted a temporary injunction after hearing, and in
The first; question which arises is, has this court jurisdiction because of a lien held by Strang & Co.? The claim of Strang, Jr., & Co. is an unliquidated demand for money, in itself a matter properly cognizable in a court of law, and not within the jurisdiction of this court, unless there be an acknowledged debt or one established by a judgment rendered, accompanied by a right to the appropriation of the debtor’s property for its payment, or, to speak with greater accuracy, there must be, in addition to such acknowledgment or established debt, an interest in the property, or a lien thereon created by contract or by some distinct legal proceeding. Smith v. Railroad Co., 99 U.S. 398" court="SCOTUS" date_filed="1879-04-21" href="https://app.midpage.ai/document/smith-v-railroad-co-89961?utm_source=webapp" opinion_id="89961">99 U. S. 398; Scott v. Neely, 140 U. S. 113, 11 Sup. Ct. 712. It makes no difference what fraud may be charged or even proved. “Unless a creditor has a certain claim on the property of his debtor, he has no concern with his frauds.” Wiggins v. Armstrong, 2 Johns. Ch. 144" court="None" date_filed="1816-06-12" href="https://app.midpage.ai/document/wiggins-v-armstrong-5550158?utm_source=webapp" opinion_id="5550158">2 Johns. Ch. 144. As is expressed in Scott v. Neely, the existence, before the suit in equity is instituted, of a lien upon or interest in the property created by contract or by contribution to its value by labor or material or by judicial proceedings liad, will enable that court to entertain a suit on a common-law demand, notwithstanding the provisions of the constitution of the United States preserving the right of trial by jury in suits at common law, when tlie value in controvex-sy exceeds §20. Scott v. Neely is affirmed in Cattle Co. v. Frank, 148 U. S. 612, 13 Sup. Ct 691. In order, therefore, to sustain the jurisdiction of the court over the second bill, it must be shown that the complainants have secured a mechanic’s lien. The first bill and the injunction thereunder proceed upon the idea that the contractors are not entitled to a mechanic’s lien. The same question, therefore, is the crucial question in each case: Is a contractor who is engaged in building a railroad entitled to a mechanic’s lien under the law of South Carolina? The statute is in these words (Rev. St. S. C. § 2465):
“Any person to whom a debt is due for labor performed or furnished, or for materials furnished and actually used, in the erection, alteration or repair of any building or structure upon any real estate by virtue of an agreement with, or by -Txisent 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 laud upon which the same is situated, to secure the payment of the debt so due him, and the costs which may arise in enforcing such lien under this article, except as is provided in the following section.”
This section is an exact copy of section 2350, Gen. St. S. C. 1882, which has the force of an act, and is also an exact copy of section 1 of the act of 1869 (14 St. at Large, 220).
Is a railroad a building or structure in the meaning of this act? In the absence of any decision by the court of last resort o>f the
There may or may not be significance in the language used in the general railroad law (section 1691, Rev. St. S. C.) giving priority to judgments against a railroad for injury to person or property over any mortgage to secure bonds of the company. That section says:
“SaiE judgment shaE relate bads to the. date when the cause of action arose, and shaE be a lien as of that date, of equal force and effect with the lien of employes for wages upon the income, property, anil franchises of said corporation, enforceable,” etc.
It may be that this protection contemplated for employés for wages excludes the idea that the legislature favored any other contractors with railroad companies.
The decision in County Com’rs v. Tommey, supra, seems to control this case, and will be followed.
But, although the jurisdiction of the court cannot be maintained upon the theory that Strang & Co. have a lien, yet there are other grounds of equity which demand the retention of the cause. The pleadings disclose an account between these parties running over