O'Leary v. Burns

Simrall, C. J., delivered the opinion of the court. The plaintiff was an incompetent witness. His testimony-tended to establish a demand for $250 against the estate of Patrick O’Leary, deceased. The distinction taken by his honor, the circuit judge, between the competency of a witness to prove his claim to a mechanic’s lien and his incompetency to prove the same claim in a personal action, is without foundation. If there is not other evidence sufficient to support the finding of the judge (to whom the case was submitted), then, for the error in receiving the testimony of the plaintiff, the judgment must be reversed. We think there is such evidence. The brick were delivered, the price per thousand was proved, and also the admission of the testator that he owed the debt. The second point is, that the suit was not brought in time. The petition was filed the 2d April, 1874. We compute the time from that date back to. the second of October, which makes six months. 1 It has been held by this court, that, where there has been a continuous delivery of materials which are put into a structure, the statute begins to run from the delivery of the last lot. The judge must have concluded that some part of the brick were delivered within the six months before suit brought. The testimony of one witness was that he hauled part of the brick in September and part in October. Another witness says that the delivery was completed between the first and middle of October. The account charges the last lot as of 8th October. We cannot say that the conclusion of the judge was wrong on the plea of the Statute of Limitations. But it is also urged that the lien is barred because of the amended petition filed in August. If that amendment for the first time preferred a claim for the lien, then it would be, in the sense of the statute, the bringing of a suit founded on it, and would be too late. But the amendment only set forth more precisely the property on which the lien attached. The original petition em [175] braced more property than the plaintiff asserted a right over. His amendment reduced the quantity, but embraced part of the property described in the original petition. Such was said by counsel at the bar to be its effect, and we so understand the record. Such amendments may be made. See Dinkins v. Bowers, 49 Miss. 219. Judgment is affirmed.