*1 203 I am not convinced long-settled law of South Carolina on this subject should be overturned. Nor Ido think that the case of Western & Atlantic R. R. v. Henderson et al., 639, 279 U. 445, S. 49 73 884, S. Ct. it. requires L. Ed. There involved was the conduct human responsible not a dumb being, animal.
The distinction was out Wilson v. pointed Southern 17, Ry., 1016, 93 1014, C. 75 an S. where animal was S. E. instinct”; referred to as “a brute which no has mere guide but again Co., Moorer v. Atlantic Coast R. 103 Line 280, 15, 16, C. 88 S. Mr. S. E. which it was said by horse, cow, who Gage the court: “The spoke Justice care; and the mule are there no duty them incapable listen; and look and stop their turn way escape might men, out be the like no way dead tell tales.” peril; It is to note that the interesting supra, Henderson was not followed Court Atlantic Supreme Coast Ford, R. Co. Line v. 287 U. Ct. S. L. 457, which Co., Ed. affirmed Ford v. Atlantic Coast R. Line our railroad crossing S. E. upheld statute as by this court. applied CLAMP, CONTRACTORS,
STONE & GENERAL v. HOLMES ET AL.
(60 (2d) 231) *2 Holman, B. Messrs. Marion and B. R. Batesburg, Nicholson, of Edgefield, Appellant, for Folk, J. R. D.
Messrs. Edgefield, Griffith, Jeff Saluda, Respondents,
CM to O 2, June
Fishburne, Justice. arises out of appeal statutory to establish proceeding and foreclose a labor, mechanic’s lien materials, and con- tractor’s services rendered and furnished by re- appellants to spondents house repairing remodeling dwelling Edgefield County. *3 contended in Appellants the court below that they orally basis; to agreed remodel the aon re- dwelling the cost-plus spondents that the oral argued agreement into entered be- tween them done, and the for the work to be appellants was $6,000.00, based an of agreed the actual price cost plus of labor and materials for or work any extra additional per- formed that beyond contracted for originally by and covered the contract price. of
By agreement counsel for all a was em- parties, jury to hear the paneled the conclusion testimony. At of the testi- the mony, Court framed certain issues which submitted were to the jury.
In the to response issue submitted them specific to as to what was, the agreement between the the found parties jury that the verbal contract was as contended : the by respondents is, that the entered an oral parties into cov- agreement certain ering work for specified $6,000- the contract of price .00, to which should be added cost of labor and materials furnished addition to that futher agreed upon. jury found, in issue, answering another submitted that the value of the extra or additional work to $3, amounted sum 719.28.
It was that the agreed had to paid appel- $6,500.00 lants the sum of as work on the progressed to building, prior the commencement this action. verdict, held that judge the rendition
After was not a be due to found by appellants amount him, determination, by to review was subject final but later an He filed under advisement. and took the matter taken, order, reducing from which this appeal $1,750- $3,719.28 from to amount reported held, however, as had been .00. He that inasmuch $500.00 $6,- the contract price over above paid by respondents amount found 000.00, should this be applied payment due, $1,750.00, balance of leaving him to be to wit: $1,250.00 due and owing appellants respond- ents. for foreclosure of me-
The trial court’s order provided lien chanic’s the event the above stated amount paid.
There is one for our question presented appeal consideration, is this: Does a trial have the judge and it mechanic’s under a foreclosure right, proceeding lien, treat it were one equity the case though of fact? reject findings the verdict of the new jury by making *4 in does not rest contend that this power appellants court, of 8748 of the hands and rely upon Section Code, material question which reads as follows: “Every if re- a jury, of fact in the case shall submitted to arising be court; and or either deemed quired by proper by party, stated, or an issue the trial shall be had a question otherwise, A framed, order. shall may jury or as the court in civil cases.” as other be had before a magistrate only of is argued virtue it foregoing By provision, of the a final determination of constituted jury finding court, law, as in a case at was binding upon amount due or subject to review modification. and not in a a many jurisdictions, pro- statutes great Under in lien is a suit equity, to enforce a mechanic’s ceeding the rules and pertaining is principles and governed chancery Under the statutes in practice. other jurisdictions, remedy enforcement of a mechanic’s lien has been be an action at law prescribed ordinary not governed and by equitable is that principles, procedure prevailing S., law. 57 Liens, 264, 872, 873; at C. Mechanics’ § p. J. Annotation, Cas., Ann. 1913B, 283.
It will noted that our be statute hereinabove quoted spe- authorizes a cifically trial by material jury every question of fact in case, a if arising mechanic’s lien either required by party. called,
In the a event is the same followed is procedure in actions, as ordinary civil their and verdict is final as conclusive a at case law. This procedure followed Crowther, in Brissey Co. v. 131, Lumber 135 S. C. Idence, 208. a the rendition its E. judgment may disregard jury’s issues submitted.
If in court, the estimate of the trial the verdict of the erroneous, jury wrong the court can avoid it it aside and a setting new trial. The granting cannot, trial verdict, under the judge power amending invade the or of the substitute his province verdict theirs, Co., & Lorick v. Julius H. Lowrance Walker & C.S. S. E.
This trial court law cases fully discussed Anderson v. Aetna & Casualty Surety Co., where great many earlier South Carolina cases cited. In Anderson are v. Aetna Co., Casualty & Surety it is stated: may grant “The court or trial, or, refuse a new in a a new proper may grant *5 nisi; trial but should do one or the other.” thing As Valk, was said in v. Murphy S. E. 101, 103: “The to law as the mechanic’s lien is statu- purely and therefore in it tory, that sense the rights given may be called but legal; the act which them into existence brought them, also certain provided which machinery enforcing nature in character somewhat of general partakes is belived to be rule in such case equitable proceedings. machinery so given special that enforcing rights followed.” strictly must be that purpose provided Critcher, 83 C. was stated in Metz It v. however, liens state, “In mechanic’s are 396: And in Johnson actions.” equitable
enforceable by ordinary be Frazee, v. 500: “Whether the to proceeding S.C. makes but little a civil action or styled proceeding special difference; be, act whatever it it is governed by may it, a which and not the Code. It is statutory provides statutory intended to enforce a specific right, proceeding it is Its question. where the right appropriate therefore, character, nature and mode of procedure, depend the act affords it.” which upon It is conceded gives Section of trial contend but that under the right by jury, section, 8749, succedent is clothed with the ultimate court to determine the amount due each creditor under a mechanic’s enforce a lien. This proceeding brought to Sec- tion, 8749, “The court shall ascertain and deter- provides: mine the amount due to each creditor who has a lien of the kind before mentioned question; upon property due, condition, such claim and without every absolutely any allowed, not then shall be with a rebate although payable, to the interest time when it would become payable.” While it is true that the section foregoing empowers creditor, the court to ascertain the each amount due we do not think that there is real conflict between any Code, these two sections of the which were en designated acted at the same time. Under it becomes the Section duty court to ascertain the correct due amount creditors, claims of and this done with or without may be 8748. But when a is de provided Section manded either or both in it is parties proceeding, trial. This is cumbent grant merely
209 of one the methods under the statute for ascer provided the the of tainment court the amount by claimed the by peti When such a tioner. is the is court procedure adopted, authorized to or its the change modify by judgment Otherwise, jury. right unqualifiedly granted 8748, that material “every Section fact arising in the be if shall submitted to a either required by case would be meaningless and party,” entirely nugatory.
It a well settled of law that where two principle conflict, statutes are in should be so apparent construed, if as to reasonably allow both to possible, stand and to force and effect to en give each. primary deavor is to ascertain and to the inten give effect manifest Pratt, 315, tion 200 legislature. Johnson v. 20 S. C. 865; Lee, v. Inc., 157, 2d 197 Cokeley E. Robert C. 14 S. S. 889; Commission, 2d Crescent v. Tax Mfg. E. Co. S. S. 480, C.
The construction which we have the two statutes given one which our inis accord with intention of opinion the lawmaking body.
Respondents contend the course followed court is Critcher, sustained Metz v. but in our
E. case is not opinion controlling. Various were points the court presented passed upon by in this case which had do with the a me enforcement of chanic’s lien. One of questions raised was whether judg ment be could solely entered the verdict of jury. upon In Code, discussing Section 3025 of the now Section which to trial if grants required either right by jury section, the court said: “This con party, unquestionably, ferred the circuit upon judge the to submit the ques tion to the whether was due the appellant petitioner in the amount but alleged it did not authorize petition; verdict, nor entry judgment make verdict the amount due jury final, under the mechanic’s lien. duty This wras imposed section *7 laws,
of the contains that Code which the the provision each court ascertain and determine the amount due shall mentioned, creditor, who has a lien of the kind before upon ” in question.’ added.) property (Italics It is clear from even a casual of this case entirely reading we have italicized in the fore- that which expression final, “nor make the verdict going quotation, jury lien,” mechanic’s constitutes to the amount due under the obiter dicta. No of the of the verdict finality jury’s was issue to the court. presented presented by was whether could be entered solely exceptions judgment of the without a decree foreclosure verdict upon jury thereon entered court.
In our when a in called a mechanic’s opinion, jury case, lien demand either its upon party, finding is case, final inas a law unless set aside the court in manner in we have indicated of this forepart opin ion; and is subject to review and modification.
It that follows of the Circuit judgment Court must reversed, stand and the case remanded a new trial. Judgment reversed. and Taylor J., and JJ.,
Baker, Stukes, Oxner, concur.
On Petition for Rehearing.
PER CURIAM. 2, 1950, filed on By opinion this court reversed the June action of the trial in court of the reducing finding from $3,719.28 $1,750.00 to latter amount (this subject was $500.00, to a credit of thus $1,- final bringing figure to 250.00), remanded the case to the circuit court for a new trial. It was held in case, a mechanic’s lien when is called final, demand of either its party, finding case, as in a law unless set in aside the court accordance with the indicated in the procedure opion. in
It is out filed pointed petition rehearing by ap- in this that no motion for a new trial was made pellants before the trial no either judge by party, exception verdict; before this as to the of the hence court validity has, court its action the case for a new trial remanding rendered, effect, the decision gone contrary by setting aside in to verdict which it held to be final.
The record this case shows that the beyond question trial the assumed to review and exercising *8 of the did so because of dicta modify finding Critcher, in Metz v. expressed if the trial court had not acted as it did
Unquestionably, of the it would have authority foregoing supposed followed, If been new trail nisi. this course had granted case have then it be inferred that the would may reasonably been to the Court appealed appellants, Supreme which event would have had respondents opportunity attack the of the verdict. validity the reduction of the verdict
Evidently to the and took no satisfactory respondents, appeal if, therefrom. But as now contended appellants, $3,719.28 of the sum of should be ordered court, to stand as the of the then the judgment would be of the to attack right deprived opportunity the verdict.
This received the most consideration serious the court preparation opinion, we deemed case justice it futherance of that the be remanded for a trial. new
Petition refused.