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SHEFFIELD FURNACE CO. V. WITHEROW, 149 U. S. 574 (1893)

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U.S. Supreme Court

Sheffield Furnace Co. v. Witherow, 149 U.S. 574 (1893)

Sheffield Furnace Company v. Witherow

No. 190

Argued April 28, 1893

Decided May 10, 1893

149 U.S. 574

Syllabus

A demurrer lacking the affidavit of defendant and certificate of counsel is fatally defective, and a decree pro confesso may be entered unless something takes place between the filing of the demurrer and the entry of the decree to take away the right.

The filing of an amended bill after a demurrer, without first obtaining an order of the court therefor, and the withdrawal of it by the complainant's solicitor in consequence, without paying to the defendant the costs occasioned thereby and furnishing him with a copy with proper references, do not take away such right.

When one party contracts to erect a building for another party on land of the latter, and a law of the state gives a mechanics' lien upon the land upon which the building stands, the parties may contract that the lien shall extend to other adjoining land of the latter party.

When the state law gives either an action at law or a remedy in equity to enforce a mechanics' lien, proceedings in a federal court to enforce it may be had in equity.

On May 27, 1886, the appellee, plaintiff below, made a proposition to defendant to construct on its premises a blast furnace for the sum of $124,000; $80,000 to be paid on monthly estimates as the work progressed; the balance to be secured, "said security to be either a mechanic's lien or first mortgage on all the furnace company's interests in Sheffield, . . . at my option." This proposition was accepted on June 2. The work was completed and accepted on April 24, 1888. On June 27, 1888, plaintiff filed in the office of the probate court of the proper county a statement for a chanroblesvirtualawlibrary

Page 149 U. S. 575

mechanic's lien in conformity with the provisions of the state statute. In this statement, the furnace is stated to be situated at Sheffield, Colbert County, Alabama, on a site containing about twenty acres, described as follows: "Twenty acres of land in fractional section 29, . . . contiguous to the City of Sheffield," etc. On September 5, 1888, plaintiff filed his bill in the Circuit Court of the United States for the Northern District of Alabama to foreclose this mechanic's lien. The bill avers that a contract was entered into for the construction of the furnace, that the amount due was $63,279.43, that a statement of lien had been filed, and prayed for foreclosure and for general relief. In the bill, the contract was not set out at length, but it was alleged that it was in writing, and would be produced at the hearing if necessary. Attached to the bill of complaint was the statement filed in the probate court. A subpoena was duly served upon the defendant on September 6. On October 1, the defendant applied for and received a copy of the bill. On October 3, it filed a paper which it called a demurrer, but which did not have the certificate of counsel or the affidavit of defendant essential to a demurrer, as required by Equity Rule 31. On the rule day in November (November 5th), a decree pro confesso was entered, and on December 19 a final decree was also entered, finding the amount due as claimed, the existence of a lien upon the twenty acres, and ordering a foreclosure and sale. At the final hearing, the plaintiff produced the lien papers, which were filed in the office of the probate court, the contract between the parties, a certificate from the superintendent of the company defendant of compliance with the terms of the contract, and an affidavit of counsel for the plaintiff to the genuineness of these documents. At the next term, and on February 4, 1889, a motion and petition were filed by defendant in the circuit court to set aside the final decree, which was overruled on the 15th of February, 1889. An appeal to this Court was duly perfected. chanroblesvirtualawlibrary

Page 149 U. S. 576





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