| Miss. | May 15, 1870
The record presents this case:
H. Sinclair brought a suit in the form of assumpsit to the May term, 1864, of the Lawrence county circuit court, against Elmyra Weathersby, to recover a sum claimed for building a house, and furnishing materials, in part, therefor. To the same term the defendant pleaded: 1. JSfon assumpsit. 2. That the work was badly done.
At May term, 1866, on motion of plaintiff, he was allowed to change the form of the action from assumpsit, to a proceeding to enforce the mechanic’s lien, and also to make new parties defendants. Accordingly H. Sinclair substituted a complaint, asserting a mechanic’s lien on the buildings. The administrator of the deceased husband of Elmyra Weathersby and his heirs at law were made parties defendant. Elmyra Weathersby excepted to the action of the court in permitting this change in the form and mode of suit to be made.
At a subsequent stage, the suit was dismissed as to the heirs at law, and went to trial as to the widow, Elmyra Weathersby and the administrator. There was a verdict and judgment for the plaintiff, below, Sinclair; and the case is brought here by the defendants in the circuit court; who assign for error:
I. The ruling of the circuit court in allowing a substitution of the petition to enforce the mechanic’s lien, in lieu of the declaration in assumpsit. The object of pleading is to state in concise form, and by positive averment, the facts constituting a cause of action, and the facts constituting the excuse, justification, or grounds of defense. This written controversy or altercation is continued until the parties come to some
At common law the canons of pleading were meant to guide and lead the parties to this result — a material issue, of law or fact. Our statutes have enlarged the powers of the courts to extend to litigants a liberal helping hand — to put their pleadings in such shape as that the real, true merits of complaint or defense may be brought out and presented for trial and adjudication,
Sinclair begun bis suit by-a personal action against Mrs. Weathersby, counting on bis contract for building the bouse, as a carpenter, and furnishing some of the materials therefor. The law attached (as he was advised) a lien on the structure, .in addition to the personal obligation of the party with whom he contracted. This application to “ substitute ” pleading or amend, had this- extent: “ Permit me to present and claim, the entire measure of my rights under my contract, in one suit. As begun I will not get all the benefits I am entitled to. As an incident of law, I have also a lien on the house. Allow me to introduce and contend for that also.”' Rev. Code, p. 508, art. 80. The court shall have full power and authority to allow all amendments in any pleading or “proceeding” at any time before verdict, so as to bring the merits of the controversy between the parties fairly to trial,” etc. Among other things, the form of the action may be changed. A change in the form of action brings the necessity of a change in the judgment, different from that in which the original suit was brought. If assumpsit were brought on a sealed instrument, could the court decline to permit a change of action to “ debt ” or “ covenant ? ” The amendment of the “proceeding ” in this case did not bring into the record any new or additional cause of action. The contract was precisely the same, the amount claimed was the same, the plaintiffs in error could have relied upon the same grounds of defense that were applicable to the action of assumpsit. That no sort of prejudice did or could accrue to them, is made manifest in the record. For they applied to
There was no error in overruling the demurrer of the heirs and Mrs. Weatherby to the petition, which embraces the second and third assignments of error.
The plaintiffs in error were not prejudiced by the instructions granted at the instance of the other party, which disposes of the fourth assignment of error. The other assignments necessary to be passed upon, brings in question the judgment against M. A. Oatis, administrator, de bonis non, and the personal judgment against both defendants. The verdict finds the issue for the plaintiff, as against both defendants.
The judgment is that “ the plaintiff recover from the defendants the sum of $550, with interest, etc., and that distringas issue, directing the sheriff to sell a framed dwelling house,” etc. Oatis was defendant in his representative capacity, and if judgment could be entered up against him at all, it should have been to be levied de bonis of the intestate and not against himself personally.
In this attitude of the case, the question arises, shall we reverse the judgment and remand the cause in toto, or can we sustain the judgment in part, and reverse in part?
Recently in the case of Buchanan v. Smith and Barksdale (supra p. 90), we had occasion to consider the “mechanic’s lien law,” and held that the provisions oí that act should be construed in a spirit of liberality, to advance the primary end aimed at by the legislature, to-wit: securing to the mechanic and material man compensation for labor and materials, especially in view of the fact that the persons intended to be benefitted were very often unlettered. The remedy is purely statutory, and the several features of the act are to be looked at for interpretation of the whole, rather than the rules of the common law. Because the suit must be brought in the circuit court, it should not be concluded that the ordinary rules of practice governing that court necessarily apply. The first direction of the act is that
The verdict ,and judgment is plainly erroneous as to the administrator de bonis non. At the time the contract was made with Sinclair, William Weathersby was the administrator. He promised to pay for the building out of the assets of Weathersby, deceased, if the probate court would allow the claim. But he could not obligate the estate, or incur a liability such as this and devolve it upon his successor.
The verdict and judgment against Elmyra Weathersby is correct, as is also the special judgment condemning the building to be sold. The building is liable under art. 3, p. 327, Rev. Code : “ If any such building or improvement be
Mrs. Weathersby, the widow, was residing on the premises with her minor children. She had a right to be there until dower was assigned her. Although she could not bind the “fee” of the heirs, by any incumbrance she might create, yet, if not tenant in dower, she was “ another person in possession actually,” and where buildings are put up by such “ other person than the owner,” the latter cannot take the land, except subject to the burden of the mechanic’s lien on the buildings.
We reverse the judgment as to all the defendants except Elmyra Weathersby. As to her we affirm the personal judgment, as also the special judgment, condemning the house to be sold. As to tbe other defendants, we remand tbe case with direction to dismiss as to them.