Smythe v. Monash ( 1918 )

February 8, 1918. The opinion of the Court was delivered by This is an appeal from an order setting aside a general judgment for a specified sum of money against the defendantin personam, on the ground that the judgment of foreclosure of the mechanic's lien herein did not authorize the clerk of the Court to enter such a judgment.

The following is the form of the judgment that was set aside by his Honor, the Circuit Judge:

"This action having been brought to trial by the Court, and a decision having been rendered for the plaintiff, and filed, * * * it is adjudged that A.T. Smythe, as receiver, * * * recover of said I.M. Monash, defendant, $12,838.11, so found. * * * "

The judgment in the action for the foreclosure of the mechanic's lien was as follows:

"It is ordered, adjudged and decreed that the report of the master be, and the same is hereby, confirmed, and made the judgment of this Court. * * * It is further ordered, adjudged and decreed that the respondent be allowed as a set-off and deduction from the sum demanded by the plaintiff, the sum of $1,500, and that the respondent is justly due to the plaintiffs the sum of $10,616.75. * * * It is further ordered, adjudged and decreed that the master do sell the property described in the complaint, after the usual advertisement at public outcry * * * for cash or part cash, as he deems the interest of all parties will be best subserved. * * * It is further ordered, adjudged and decreed that either party to this cause shall have the right to apply at the foot of this decree to any Judge at chambers, or in open Court, on four days' notice to the other parties, for such further orders as may be necessary to effect the sale of the property to the best advantage."

The master, in his report, which was confirmed, recommended:

"(1) That the petitioners have judgment for $10,616.75, with legal interest. * * *

"(2) That should the respondent fail to make settlement with the petitioners within the time fixed by the Court, the master be authorized to sell the premises above described by public auction, upon terms to be fixed by the Court."

On the 14th of March, 1916, and prior to the entry of judgment by the clerk of Court, the attorneys of the respective parties to this action entered into an agreement which, among others, contained the following stipulations:

"(1) That the notice of intention to appeal heretofore filed and served be, and the same is hereby, withdrawn and abandoned.

"(2) That judgment shall be entered in this cause, in favor of the plaintiff-petitioner, against the defendant-respondent, in accordance with the recommendations made by the master herein, and as confirmed and provided for in the decree of this Court herein, and on file in this Court."

This appeal is not intended to alter or effect the judgment of foreclosure of the mechanic's lien in any respect whatever, but merely to determine whether the judgment entered by the clerk of Court was in conformity with the judgment of foreclosure.

The words in the judgment of foreclosure, "that the respondent is justly due to the plaintiffs, the sum of * * * dollars," do not authorize the entry of a judgment in personam, for several reasons, to wit: There are no words expressly authorizing the entry of such a judgment; it was necessary for the Court to ascertain and determine the amount due under the mechanic's lien, by the defendant (Metz v. Critcher, 83 S.C. 396, 65 S.E. 394); it would not have been in accordance with the terms of the statute providing for the foreclosure of a mechanic's lien for the Court to decree that the plaintiff was entitled to a judgment inpersonam against the defendant (Tenney v. Water PowerCo., 67 S.C. 11, 45 S.E. 111; Metz v. Critcher, 83 S.C. 396,65 S.E. 394).

The recommendation of the master was that the petitioner have judgment for the sum therein mentioned, but the judgment of foreclosure simply provides that the respondent is justly due the plaintiffs the sum therein mentioned. Evidently, both the master and Circuit Judge intended to comply with the provisions of the statute, which require the Court to ascertain and determine the amount due under the mechanic's lien, but which do not authorize a judgment inpersonam.

Affirmed.

MESSRS. JUSTICES HYDRICK and FRASER concur.