Wilson v. School District No. 2 , 17 Kan. 104 ( 1876 )

The opinion of the court was delivered by

Brewer, J.:

Are the provisions of the lien law of 1872 applicable in case of the erection by school districts of public school buildings? This is the principal question in this case, and must, we think, be answered in the affirmative. The language of the act is general and contains in itself no express or implied exceptions of school or other public buildings. “Any mechanic or other person who shall under contract with the owner of any tract or piece of land, his agent or trustee, * * * perform labor or furnish material for erecting, altering, or repairing any building, or the appurtenances of any building, or any erection or improvement, * * * shall have a lien * * * for the amount due to him for such labor or material.” Laws 1872, p. 294. This language could scarcely be made more comprehensive. Any mechanic, the owner of any tract, any building. Here is no suggestion of any exception. If public school buildings are exempted, it must be because of some other statute, or because they are in the very nature of things not subject to such liens. There is no express exemption by other statute. That upon which counsel rely is § 85, on p. 932 of the Gen. Stat., which provides in. effect that no execution shall issue upon judgments against school districts, but that' the district board shall levy a tax to pay such judgment, and in default thereof judgment may be recovered against the delinquent officers. Hence, as, by this; executions are forbidden, and the power to enforce a lien by levy and sale taken away, it is claimed that the lien itself cannot be created. This seems to us a non sequitur, and that full force is given to this statute if it is carried as far as its language goes and no farther; that is, if it operates to prevent the issue of process upon judgments, leaving all proceedings and rights prior thereto to be regulated and determined by other statutes. In this way both statutes are made operative. Contractor and subcontractor may secure liens. The latter may be protected against the irresponsibility or the rascality of the former, and the rights of all parties adjusted in accordance with the terms of the lien law. Liens may be foreclosed and placed in judgment, and then like other judgments are met by this statute which provides a tax instead of an execution as a means of enforcement. But it may be said that there is an incongruity in calling that right a specific lien, which is incapable of direct enforcement; and further, that the necessities of public business require that public buildings shall be held exempt from mechanics’ liens, or any risk, incident thereto, of their being lost to the public use. But many specific liens exist which cannot at all times be directly or otherwise enforced. A mortgage prior to its maturity, and a decree of foreclosure prior to the time when by its terms process may issue, are examples. So there are liens whose enforcement is suspended during the existence of the title by which defendants hold their property, as the lien in some states of judgments upon homestead property, a lien suspended or incapable of enforcement until the homestead-quality is removed. So here, there is nothing to prevent the existence of a lien upon a school building, suspended or incapable of direct enforcement until the public use of the building ceases, or the title passes from the district. Upon the other proposition, we find in Chicago v. Halsey, 25 Ill. 595, that a majority of the court held that independent of statute no judgment could be levied upon the public property of a city; and in Darlington v. The Mayor, &c., 31 N. Y. 164, that Ch. J. Denio, giving the opinion of the court, makes this distinction, holding that no property held by a city for public use can be seized on execution, but that any private property belonging to the city and not so held may be thus seized. In Brinkerhoff v. The Board of Education, 37 How. Pr. 520, a majority of the common pleas court held that a mechanic’s lien could not be had or enforced against a public schoolhouse. See also Philips on Mechanics’ Liens, 255, 610, 611; Wilson v. Comm’rs, 7 Watts & S. 197; Williams v. Controller, 18 Penn. St. 275; Foster v. Fowler, 60 Penn. St. 27; Poillon v. Mayor, &c., 47 N. Y. 666; Shattell v. Woodward, 17 Ind. 225. That where there is no statutory restriction, process may issue on judgments against municipal or quasi municipal corpo-' rations, see city of Independence v. Trouvalle, 15 Kas. 70. Whether upon such execution property held for public use can be taken, is a question as yet undecided in this state, and not necessary to be decided now. Eor in this case, no execution can issue. And the question is, whether taking away the process for enforcing a lien, takes away all rights to create the lien; and for reasons heretofore suggested, we think it does not. If the lien law applies in determining the representative rights and liabilities of owner, contractor, and subcontractor, then a payment to the contractor prior to the expiration of sixty days from the completion of the building does not release the owner from liability to the sub-contractor. Laws 1872, p. 295, § 2; Shellabarger v. Thayer, 15 Kas. 619.

The remaining question is, as to the effect of a judgment. The facts were presented in an agreed case under § 525 of the code of civil procedure, Gen. Stat. 733, and without pleadings. Among the facts, it appears that a judgment was rendered in a suit brought by this plaintiff against the contractor and the school district for the foreclosure of this lien, in which the court finds the amount due from the contractor to plaintiff, and renders a personal judgment therefor; also finds that the materials set out in the petition were furnished by plaintiff under a contract, and were used in the construction of the school building, and then the district is ordered to pay said plaintiff the amount of the judgment out of any moneys due the contractor, provided there is enough left to pay this and all other liens that may be established, if not, then pro rata. To this judgment no exception was taken, and no proceeding had to reverse or modify it. Now it is claimed that the effect of this is to discharge any so-called mechanics-lien, and gives to the plaintiff what is equivalent to a judgment against the school district as a garnishee, and that as a matter of fact the district did not and does not owe the contractor anything. There is much in the language of the judgment to sustain this claim of counsel, and it is doubtful whether it should' not be held to be well founded. But after considering the pleadings in connection with the judgment, and the facts agreed to in this case, we are constrained to overrule the claim. There is nothing in the pleadings in that case to warrant a mere garnishee proceeding and judgment. It is a suit to foreclose a mechanics-lien, and the issues ran to the fact of the debt and the existence of the lien. The judgment should be based upon the issues, and the forms of expression should be construed in reference thereto. It seems to us therefore, that without doing unreasonable violence to language it may be held that the court intended to and did adjudicate the validity of the lien, and expressed itself in the language used for the sake of avoiding any grant of process to enforce the lien, seemingly forbidden by the section of the statute heretofore referred to. Such a construction places the judgment in harmony with the issues and the pleadings, and the admitted facts in this case.

We think therefore that the plaintiff whs entitled to a judgment; and the case will be reversed and remanded, with instructions to render judgment against the defendant and in favor of the plaintiff for the amount of his lien, interest, and costs.

All the Justices concurring.