Sharpe v. Spengler

Tarbell, J.: Proceedings to enforce mechanic’s lien on land or buildings. Verdict for plaintiff, declaring a lien upon both building and land. Thereupon, the plaintiff relinquished his right to proceed against the land, and moved the court for judgment against the building only, which was sustained, and judgment accordingly. Prom this judgment a writ of error was prosecuted, and the sole ground claimed here for reversal is the judgment of the court against the building only, upon the verdict against the land and building. It is enacted in section 1613, Code of 1871, that “ the court may set aside verdicts and grant new trials, and' give judgment according to the justice of the case” in these proceedings. Complaint is not made of the verdict, hut of the judgment, because not in accordance with the finding of the jury. Even if this were not strictly regular in practice, it is difficult to see how the defendants can be harmed by a judgment for less than the verdict. If the plaintiff consents to accept a judgment against a building when awarded a lien upon land and building by the jury, as in the case at bar, how is this unjust to the defendants? What injury can it work to them ? We are unable to perceive either error or injustice in this, and though not strictly within the rule as to the remittitur of damages, yet is within its spirit, as it is within the spirit of the rule allowing a discontinuance as to part of an action, and also of amendments. The statute regulating this proceeding is liberally construed for the ends of justice (§ 1613, Code of 1871; Weatherby v. Sinclair, 43 Miss. 189); and the practice in the case at bar is within the spirit of section 628, Code of 1871. Judgment affirmed.