DocketNumber: No. 28945.
Citation Numbers: 131 So. 426, 159 Miss. 288
Judges: <bold>Anderson, J.,</bold> delivered the opinion of the court.
Filed Date: 12/15/1930
Status: Precedential
Modified Date: 1/12/2023
I concur in the affirmance of the judgment of the court below, but not in the construction put on section 3060 of the Code of 1906, Hemingway's Code 1927, section 2582, by my brethren. It appears from the petition that the appellant screened the doors and windows of a house owned by the appellee, at the request, and on the credit, of her husband, but without her written consent thereto. I will assume that screening doors and windows of a house is an alteration or repair thereof within the meaning of the statute. If the appellee's husband is an "other person" within the meaning of the statute, then the appellant has a lien on the house, but not on the land on which the house is situated. The plain language of the statute is: "If such house . . . be . . . altered or repaired at the instance of a tenant, guardian, or other person not the owner of the land . . . the house . . . shall be subject to such lien."
No rule of construction of which I am aware warrants any limitation on the scope of this lien so clearly provided. That the statute grants a lien on "the house" repaired was assumed, apparently, by both the court and counsel in Planters' Lumber Co. v. Tompkins,
It is now suggested that, if the statute grants a lien on a house for repairs thereto, made at the instance of another than, and without the written consent of, the owner, it violates the due process clause of the Fourteenth Amendment to the Federal Constitution.
This necessitates a re-examination of the question decided in the Planters' Lumber Co. v. Tompkins case, supra, for, if the appellee's husband is not an "other person" within the meaning of the statute, no question of the constitutionality of the statute can here arise. *Page 300 These general words "or other person" are preceded in the statute by words describing persons of a particular character who bear such relation to the land on which a house is situated as gives them the right, within limitations, to alter or repair the house. That the words "or other person" were not intended to broaden this classification is evidenced by the subsequent provision of the statute that "the estate of the tenant or such other person, in the land, shall be subject to such lien." The statute is a typical one for the application of the "ejusdem generis" rule, with reference to which Cyc., in volume 36, at page 1119, says: "By the rule of construction known as `ejusdem generis,' where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated. The particular words are presumed to describe certain species and the general words to be used for the purpose of including other species of the same genus. The rule is based on the obvious reason that if the legislature had intended the general words to be used in their unrestricted sense they would have made no mention of the particular classes. The words `other' or `any other' following an enumeration of particular classes are, therefore, to be read as `other such like,' and to include only others of like kind or character."
So likewise say Anderson v. City of Hattiesburg,
The husband has no estate or present interest in his wife's property, and no right, except with her consent, to alter or repair houses belonging to her; and therefore is not an "other person" within the meaning of the statute. *Page 301
It follows from the foregoing that I am of the opinion that Planters' Lumber Co. v. Tompkins, supra, should be overruled and the appellee's husband be held not to be an "other person" within the meaning of the statute. Should this be done, no question of the constitutionality of the statute could here arise.