Waring v. Miller Batting &c. Co.

36 S.C. 310 | S.C. | 1892

Lead Opinion

The opinion of the court was delivered by

Mr. Chief Justice McIver.

The questions presented by this appeal arise under a demurrer to the petition filed by the appellant to enforce a mechanic’s lien, upon the ground that the facts stated in the petition are insufficient to entitle appellant to the remedy sought. The only deficiency relied upon is that there is no allegation in the petition that the “statement” required by the statute was filed in “the office of the register of mesne conveyances,” and that the same was “recorded in a book kept for the purpose-by the register” ; the allegation being that such statement was filed in “the office of the clerk of the Court of Common Pleas for, Richland County aforesaid,” and that the same was “recorded in a book kept for the purpose by the said clerk.” The demurrer was sustained, and when the Circuit Judge announced his conclusion to that effect, the petitioner moved to amend his petition by “alleging tha-t the statement was filed in the office of the register of mesne conveyances of Richland County, and was recorded by said register,” which motion was refused. The petitioner appealed upon the several grounds set out in the record, raising, substantially, but two questions: 1st. Whether there was error in sustaining the demurrer. 2nd. Whether there was error in refusing the motion to amend.

1 It seems that the lien sought to be enforced arose under a contract in writing, entered into between appellant and respondent on the 15th of December, 1890, for the erection of certain buildings by the former for the latter; that the work was finally completed on the 25th of April, 1891, and the “statement" required by the statute was filed in the clerk's office on the 1st of July, 1891, within the ninety days prescribed by the statute. So that the only inquiry, so far as the first point raised by the appeal is concerned, is whether the filing of the required “statement.” in the office of the clerk of the Court of Common Pleas, and recorded by the clerk, is a sufficient compliance with the statute, which, as it now reads and as it read at the time this lien arose, required such “statement” to be filed in “the office of the register of mesne conveyances,” and'“recorded in a book kept for the purpose by the register.”

Section 2354 of the General Statutes, as it originally read, required the “statement” to be filed in the office of the “clerk of the Court of Common Pleas,” and recorded in a book kept for the purpose by the “clerk,” but by the act of 1884 (18 Stat., 822), that section was amended by striking out the words, “clerk of the Court of Common Pleas,” in the 3rd and 4th lines of the section, and inserting in lieu thereof the words, “register of mesne conveyances,” and by striking out the word “clerk,” in the 10th line, and inserting in lieu thereof the word “register.” This would seem to show conclusive!}' that the legislature not only recognized a distinction between the two offices of clerk and register, but also expressly declared that the original provision, requiring the “statement” to be filed in the clerk's office and recorded by him, should be repealed (for the second section of the act of 1884 contains a general repealing clause of “All acts and parts of acts inconsistent with this act”), and that thereafter the lien should be dissolved unless the prescribed statement shall be filed, within the time designated, in the office of the register and be recorded in a book kept for the purpose by the register. Why the legislature siw fit to make this change in the law, it is not for the court to inquire. It is sufficient to say, Ita lex sen'pta est.

It is contended, however, by the counsel for appellant, that in all of the counties of this State, except Charleston, Berkeley, and Greenville, the offices of clerk and register are one and the same. It is true that section 765 of the General Statutes does provide that “The clerk of the Court of Common Pleas and General Sessions of each county in the State shall be register of mesne conveyances for the same, except for the Counties of Charleston, Berkeley, and Greenville” ; but this simply amounts to a declaration that the duties of both offices shall be performed by the same person — that when one is elected clerk and qualifies as such, he thereby becomes also register, without further election or appointment. It is, therefore, rather a recognition of the fact that the two offices are distinct, but are to be held by the same person. There is nothing in the language of the section which even implies an intention to abolish the office of register or to consolidate it with that of clerk, but rather the contrary. If the intention had been to abolish the office of register in ¡ill of the counties of the State except the three named, and impose the duties and vest the rights incident to the office of register upon and in the clerk, it would have been very easy to say so; just as the legislature did say when the office of tax collector for the election district of Winyah was abolished, and the duties and rights incident thereto were imposed upon and vested in the sheriff of Georgetown District by the act of 1854—12 Stat., 360. But the legislature not having said so, it is not for the court to say so for them. From the review of the legislation of this State with respect to the office of register of mesne conveyances, to be found in State ex rel. Woodsides v. McDaniel, 19 S. C., 118, it is clear that this office has existed from a very early period of our legislative history as a distinct and separate office; for a time a constitutional office, but since the adoption of the Constitution of 1790, a mere legislative office. For that decision manifestly rests upon the theory that the two offices of register and clerk are distinct and' separate, though the duties incident to each may be performed by the same person.

Section 767, General Statutes, is also relied upon by appellant to show that the two offices are no longer distinct and separate, except in the three counties specially named. That section reads as follows: ‘'The deputy clerk may act as deputy register of mesne conveyances; and in those cases where the offices shall be distinct, the register of mesne conveyances may appoint a deputy, in the same manner that clerks of courts are authorized to do.” Now, if the legislature regarded the two offices as identical, it would have been wholly unnecessary to provide that the deputy clerk might act as deputy register, for if the two offices were consolidated, then necessarily the deputy clerk would also be deputy register, and could act as such without any special provision to that effect. The very fact that the legislature thought it necessary to insert this provision shows that the legislature regarded these two offices as distinct from each other, and, therefore, the appointment of one as deputy clerk could not, without a special provision to that effect, authorize him to act as deputy register. In other words, the appointment as deputy in one office did not confer authority upon the appointee to act as deputy in another office, even though the two offices should be held by one and the same person. The words in that section principally relied on by appellant — “and in those cases where the offices shall be distinct”' — standing alone would, it is conceded, tend strongly to support the view contended for by appellant, but viewed, as they must be, in connection with the other provisions of the law upon the subject, they must be construed to mean, in those cases where the two offices are held by different persons. For the manifest object of the section was to provide for the performance of the duties of register by deputy, and as provision had already been made in sections 723, 725, and 726 for the appointment of a deputy clerk, the simplest mode of effecting the object was the provision found in section 767, without repeating the provisions contained in sections 723, 725, and 726; but as there were three counties in the State in which the same person w'as not entitled' to hold both offices, it was necessary, to avoid having one officer’s deputy appointed by another officer, to make the provision in which the language relied upon is found, which obviously means that in the Counties of Charleston, Berkeley, and Greenville the registers may appoint their own deputies.

Section 745 is also relied on, which provides: “It shall be the duty of the clerk, or of the register of mesne conveyances, as the case may be, in whose office any judgment or mortgage may be of record,” to enter satisfaction thereon when required. How this section can be regarded as lending any force to the view that the legislature regarded the two offices as the same, it is difficult to conceive. The manifest object of the section was to require the officer, be he clerk or register, in whose office a lien was on record, to permit satisfaction to be entered thereon by the lienee, or to enter it himself, if required by proper authority. If the lien was in the form of a judgment, then the satisfaction was to' be entered- by the clerk, but if in the form of a mortgage, by the register; and the fact that these two offices are both mentioned in the same section, in one of which judgments are of record and in the other mortgages, would seem to imply that the legislature recognized the two as distinct rather than the contrary. The same remarks will apply to section 769, which require that different sets of books and separate indexes shall be provided by the clerks and registers of mésne conveyances. Section 754, which provides that it shall be the duty of the clerk to furnish, free of charge, to the county commissioners a certificate of all liens “that may be of record in his office,. * * * whether by judgment, mortgage, or otherwise,” likewise relied on, proves too much, for the' provision is general, and the register is not mentioned in that section, and yet it is conceded that in three of the counties of the State the clerk is not register, and is not the custodian of the records of mortgages. Furthermore, if that section could be regarded as recognizing the identity of the two offices, it would be neutralized by the provisions of section 770, which requires the register, without mentioning the clerk, to give certain certificates as to papers recorded, or which should be recorded, in his office.

But even if there were anything in the several sections of the General Statutes thus briefly reviewed tending to show that the two offices of clerk and register had become blended into one, except in the three counties specifically named, it is difficult to conceive how' the court could disregard the plainly expressed intention of the legislature, as declared by the act of 1884, above cited, not only amending section 2354, but repealing so much of it as is inconsistent with that act. The object of that act undoubtedly was to alter the pre-existing law, which required the paper here in question to be filed in the clerk’s office, by substituting another office — the register’s. This the law-making power has explicitly-declared, and-neither courts nor individual citizens have any right to disregard this explicit declaration of the legislative will. In answer to the view presented by appellant’s counsel, that the object of the act of 1884 was simply to reconcile the inconsistent provisions of sections 1776 and 2354, in reference to the filing and recording papers of this kind in those counties where the offices of clerk and register are conceded to be separate and distinct, it will be sufficient to say that the legislature have certainly not expressly said anything of the kind, and such an intention cannot be properly inferred from anything which they have said. The act of 1884 does not make the remotest allusion to section 1776 of the General Statutes, but it does refer in express terms to section 2354, and declares explicitly that the previous provision of the law declaring that the filing and recording of a paper like this, here in'question,'in the office of the clerk, shall be sufficient to prevent the dissolution of the lien should no longer exist, and thereafter the lien shall be dissolved unless such paper shall be filed and recorded in another office — the register’s. There was no error, therefore, on the part of the Circuit Judge in sustaining the demurrer.

2 The next inquiry is, whether the judge erred in refusing the motion for leave to amend. While motions of this character are oftentimes addressed to the discretion of the court, yet when they are refused upon erroneous legal grounds, this court unquestionably has the power, and it is its duty to inquire into and reverse an order refusing a motion to amend on erroneous legal grounds. Sibley & Co. v. Young & Napier, 26 S. C., 415.

3 It does not appear that the Circuit Judge based his refusal of the motion upon any ground appealing to his discretion, but upon the ground that the effect of the amendment asked for would be to revive a lien which was then lost, and to allow the amendment “would be equivalent to allowing the petitioner to contradict his petition, to state a cause of action where none is now stated, and to prevent the dissolving of his alleged lien after the expiration of the ninety days,” &c. The judge seems to have supposed that the allegation, that the “statement” ' was filed and recorded in the clerk’s office, necessarily implied that it was not filed and recorded in the register’s office. There was, however, no such necessary implication. It was quite possible that the “statement” may have been filed and recorded in both offices, and the mere statement that it was filed and recorded in one office did not necessarily involve the idea that it was not recorded in the other. The effect of the' amendment would not, therefore, necessarily be to revive a lien after it had been dissolved. Nor was the fact, that to allow the amendment would be equivalent to permitting the petitioner to contradict his petition, sufficient to require a refusal of the amendment. Hall v. Woodward, 30 S. C., 564. A party may in. his pleading, through ignorance or inadvertence, misstate or state insufficiently a fact material to his case, and one of the main objects of the provision in respect to amendments is to enable him to rectify such errors or omissions. The amendment asked for would not effect any change whatever in the nature of the petitioner’s claim, but,was intended simply to supplement a defective statement of the facts upon which the remedy he sought to enforce his claim was based, and it should have been allowed. McGhee v. Piedmont Manufacturing Company, 7 S. C., 263; McKnight v. Cooper, 27 S. C., 92. .

The judgment of this court is, that the judgment of the Circuit Court, in so far as it sustained the demurrer, be affirmed, but in so far as it refused the motion to amend, it be reversed, and the case remanded to the Circuit Court for such further proceedings as may be necessary to carry out the views herein announced.

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Concurrence Opinion

Mr. Justice McGowan.

Section 765 of the General Statutes declares that the clerk of the Court of Common Pleas and General Sessions of each county in the State shall be register of mesne conveyances of the same, except for the Counties of Charleston, Berkeley, and Greenville.” The clerk of the court for Richland County is the same man as the register of mesne conveyances; his office is the same, and the books kept for the purpose of registry are in the same. The only objection was that the person, who was both clerk and register, was styled clerk of the court and not register of mesne conveyances. It seems to me that there is nothing substantial in the objection, and that the demurrer might have been overruled. But being sustained, the petitioner should have been allowed to amend. 1 therefore concur.

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Concurrence Opinion

Mr. Justice Pope.

Upon the same reservations indicated by Mr. Justice McGowan herein, I concur in the opinion of the Chief Justice. '