Birmingham Building & Loan Ass'n v. May & Thomas Hardware Co. , 99 Ala. 276 ( 1892 )

HABALSON, J.

Chapter 3, Part 3, Title 2 of the Code of 1886, headed,'“Liens of mechanics and material-men,” provided a system of statutory law on that subject, comprising 31 sections, from 3018 to 3048, inclusive. On the 12th February, 1891, the legislature passed “An act to provide liens for mechanics and material-men, and to repeal sections 3018, 3022, 3025, 3026, 3028, 3041 of the Code, and section 3027, as amended by the acts of 1888-89.” — Acts 1890-91, pp. .578-80. These sections, seven in number, were parts of this general mechanics’, and material-men’s lien law, leaving 24 of its sections still of force. In the place of these repealed sections, other provisions were supplied, forming with the unrepealed sections a system supposed to be more complete than the one that existed before. So far as we have observed, the old and the new are susceptible of harmonious adjustment; but, if not, the last section of the new provides, “that all laws in conflict with the provisions of this act are hereby repealed,” and in case of conflict the latter will prevail. There can be no question, then, that this later enactment was not intended to create an entirely new system of law on this subject, in abrogation of the old, but to amend the latter to the extent of the repeals indicated in its 1st section, and in its new provisions, and leave the balance to be adjusted to these amendatory provisions. While section 3018 of the Code, which declared the lien, is repealed, section 2 of the new enactment, which also declares it in more extended form, takes its place in the new system, and sections 3019 and 3048, not having been, repealed, are to be applied to said section 2 of the amendatory law, as they were to section 3018 before its repeal. This was the view the court seems to have taken of the character of this statute in Wimberly v. Mayberry, 94 Ala. 251.—Colby v. St. James (Colored) M. E. Church, at present term, ante p. 259.

The supposed lack of equity in this bill is based on the contention, that section 3018 of the Code having been repealed, sections 3019 and 3048, upon which the right to maintain the bill depends, were necessarily repealed with it, since the two latter were inoperative without the former. But we have shown above that section 2 of the amendatory act of 1890-91, under which this case arose, took the place of said repealed section — 3018—as an amendment of it, and said sections 3019 and 3048 became applicable to it, immediately upon its enactment. This question being out of the way, the case of Wimberly v. Mayberry, supra, is decisive of the equity of this case.

The grounds of demurrer based, also, upon the supposed want of equity in the bill, must, for the same reasons, fail. Nor is there any merit in the other ground of demurrer, that the complainant had an adequate remedy at law. The suit in the Circuit Court was against Ethridge alone. The defendant company was not concluded in its liens, or in the assertion of their priorities, by any thing that took place in that proceeding; and the complainant, in having obtained said judgment against said Ethridge, and purchased said property at the sheriff’s sale, was not precluded from filing his bill to settle with the appellant the priorities of their respective liens, as this bill is intended to do. There is no other adequate remedy, to adjust these competing liens, except a proceeding in equity.

There is no error in the rulings of the court below, and its decree is affirmed.