Parish v. Murphy
Parish v. Murphy
Opinion of the Court
Can a mechanic, under sections 1963 and 1961 of the Code, institute suit for the enforcement of the lien provided for in section 1959, against the specific property on which his lien attaches, and in the same action obtain a general judgment against his debtor for the same debt? That is the main question presented in this case. We see no reason why this right should not exist. There is nothing in any of the provisions of the Code connected with this subject that at all indicates a contrary meaning. The two sections referred to use the usual terms applicable to ordinary suits, such as “the commencement of an action for the recovery of the amount of his claim,” and “ in declaring for such debt,” etc. It is true it is stated that “ if the lien is allowed, the verdict shall set it forth, and the judgment- and execution be awarded accordingly.” There need be no difficulty in all this under the decision we makeA The pleadings must show the debt just as well as if they were only for the enforcement of the lien as they must when a general judgment is also claimed. If the creditor (mechanic) must prove his claim as fully to enforce his lien as he does to obtain a judgment having a general lien, what objection can there be in principle to his having both ? The action is commenced at the usual time, served in the usual way, and awaits the second term, as all other suits do. It is not like the case of foreclosing a mortgage on personal property or of enforcing liens by summary process under the steamboat law. In those, the executions issue without notice to the debtor, and are properly confined to the specific property on which the lien is claimed. It is more like the case of an attachment, where the defendant replevies, or appears and defends, or has been notified of the attachment. In either of these cases the judgment binds all his property, but still retains the special lien on the property attached, and as directed by the law shall be first levied on such attached property: Code, section 3228. We hardly think that this rule as to what property shall be first levied on applies to the case of a suit by a mechanic. It
There was another point made in the case which we will notice. It was objected that the judgment awarded by the court, there being no plea and no verdict, did not order or direct that a general execution should issue, but did award that there was a lien for the amount of the judgment on the premises set forth. The judgment was for the plaintiff for a certain amount, with interest from a certain date, and cost, and then added, “for which amount the plaintiff has alien on the premises set forth,” etc. This was sufficient. If no lien had been claimed, the judgment was sufficient without the addition of any words as to the lien. When such a lien is asserted and allowed, “the verdict (judgment) shall set it forth, and the judgment and execution be awarded accordingly:” Revised Code, section 1964. This judgment was, in effect, just what a verdict and judgment should have been, had it been a case where a verdict had been rendered. As to the objection made to the judgment entered by counsel, that it recited, after directing execution to be issued against the property set forth, the words, “and to be levied of the other goods
Judgment affirmed.
Reference
- Full Case Name
- Euphemia H. Parish, in error v. Edmund T. Murphy, in error
- Cited By
- 6 cases
- Status
- Published