Floyd v. Chess-Carley Co.

The two cases embracing the same principles will be considered together. The plaintiffs in error foreclosed their liens as laborers. The affidavits of foreclosure were made before the ordinary and were handed to the clerk of the superior court, who issued executions thereon. The contestant moved to dismiss the foreclosure proceeding on several grounds, one of which'was because the same had *754not been marked as filed by the clerk of the superior court, and on this ground alone the court dismissed the same. Plaintiffs excepted, and this is the error assigned.

1. When the papers were handed to the clerk for him to issue executions, they were in fact filed in his office. The marking on the papers filed and signed by the clerk is only evidence of what had been done; so we think the court was clearly wrong in sustaining the motion on this gi’ound.

2. The defendant in error insists that, although the court may have been wrong in dismissing the case on the ground on which he put it, yet it should have been sustained on the other grounds in the motion. While we do not recog. nize this position as corx’ect in this case, as we think he should have prosecuted a cross-bill of exception to have reached the other gx’ounds ixi his motion, we will say this, that the affidavits of plaintiffs in error were sufficiently clear and certain that the labor was perfox-med by them, selves as laborers and not by others for them. In the one case, Floyd states that he labored as a distiller. Skipper’s affidavit is equally distinct and clear on this point; his affidavit declares that he was employed as teamster, and did labor as such teamster.

The executions which were issued in these cases were substantially in conformity to section 1991 of the Code.

Judgment reversed.