Wilbur v. Hampton

Whitfield, P. J. The suit was brought against W. M. Hampton and R. B. McMillen in equity and transferred to the law docket under the statute. The bill of complaint stating the cause of action was perhaps defective as to the defendant Hampton, and possibly defective also as to the other defendant. The claim against each defendant arose out of alleged separate contract relations for labor used in improving real estate in which real estate each defendant had a definite successive interest. The remedy, sought was' á lien upon the lands improved. At least a part, of the claim could not legally be enforced in equity. There were enough allegations in the bill of complaint to warrant per■fecting amendments to state a distinct cause of action against the defendant Hampton, either in equity or at law. *257 The statute authorized a transfer of the cause to the law docket; and after the transfer a cause of action defectively stated in the bill of complaint against Hampton may be properly stated in the declaration in the law court for appropriate relief. And such a statement of a cause of action at law against the defendant Hampton, is not distinct from the cause -of action against him as defectively stated in the bill of complaint, and it is not barred by the statute of limitations since the original process in the cause transferred under the statute was duly served upon Hampton before the statute had run. Judgment reversed. Terrell, Buford and Davis, J. J., concur. Ellis, C. J., and Brown, J., dissent.