Sheffield Furnace Company v. Witherow

Statement by Mr. Justice BREWER:

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 2d. 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 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, Ala., on a site containing about 20 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 6th. On October 1st the defendant applied for and received a copy of the bill. On October 3d 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 19th 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.

T. R. Roulhac, R. W. Walker, and H. C. Tompkins, for appellant.

Henry B. Tompkins, Wayne MacVeagh, and A. H. Wintersteen, for appellee.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.