
    Baltimore Trust Company v. Western Union Telegraph Company; et vice versa.
    
    Nos. 1154, 1155.
    July 17, 1919.
   Atkinson, J.

On March 29, 1915, the Baltimore Trust Company as trustee for certain bondholders, and individually, instituted an equitable action against the Georgia & Florida Railway, for the foreclosure of a mortgage or deed of trust executed by the railway company to secure its bonds, and for the appointment of a receiver. The mortgaged property consisted o'f several designated lines of railroad and all of the real and personal property of each, and “rents, issues, profits, and franchises relating to any of said separate railroads, and all rights under leases, traffic agreements, easements, etc., in any wise belonging or appertaining thereto.” While the case was pending, the Western Union Telegraph Company, on August 29, 1916, filed its intervention for the recovery of several stated amounts for which it was sought to establish a lien upon the Georgia & Florida Railway, and upon the tangible and other property of that company, superior to the lien of the mortgage, on the basis of furnishing material, supplies, and other articles necessary to the operation and existence of defendant’s railroad. None of the items of either of the several claims accrued within the six months immediately preceding the filing of the intervention. On August 26, 1918, the Baltimore Trust Company filed a demurrer on the ground that the intervenor did not set up a claim superior to the mortgage. The intervenor moved to strike-the demurrer, on the ground that it was filed too late. The motion to strike was overruled. After consideration the demurrer was overruled. The case was submitted to the judge, without a jury, upon the pleadings and agreed statement of facts. A judgment was rendered in favor of the intervenor for a stated amount; and setting up a lien, superior to the lien of the mortgage, for a certain portion thereof on the basis of being “material, supplies, and other articles necessary to- the operation” of the railroad, against all of the property of the Georgia & Florida Railway. The Baltimore Trust Company filed a bill of exceptions, assigning error upon the judgment overruling its demurrer, and upon the final judgment setting up a lien in favor of the intervenor superior to the mortgage; and the Western Union Telegraph Company filed a cross-bill of exceptions, assigning error upon the judgment overruling. the motion to strike the demurrer to the intervention. Held:

1. This case is a branch of Baltimore Trust Co. v. S. A. L. Ry., ante, 260 (99 S. E. 867). and is controlled by the rulings therein made. Accordingly, the intervenor was not entitled to an equitable lien for materials furnished, superior to the mortgage; and as none of the items for material furnished accrued within six months immediately preceding the filing of the intervention, the intervenor was not entitled to a statutory lien for the amount as set up, superior to the mortgage.

2. The demurrer to the intervention was upon the general grounds and in the nature of a motion to dismiss, which could be made at any time; and there was no error in refusing to strike it on the ground that it was filed too late.

Judgment reversed on the main hill of exceptions, and affirmed on the cross-hill.

All the Justices concur.

Equitable petition — intervention. Before Judge Hammond. Richmond superior court. August 26, 1918.

Harman, Cook, Chestnut & Markell and Cumming & Harper, for plaintiff.

James C. C. Black and Barrett & Hull, contra.  