Richardson v. Warwick , 8 Miss. 131 ( 1843 )

Mr. Justice Clayton

delivered the opinion of the court.

This was a petition filed by the appellees, under the act of 1840' to enforce their lien for work done as mechanics, upon a gin house and tract of land of the appellant.

It is objected on the part of the appellant, that if the right of the petitioners under this act to enforce their lien is purely legal, and the mode of proceeding prescribed is at law, then the statute is unconstitutional, because by inference and implication it takes away the trial by jury. If the mode of proceeding is an equitable one, that then the judgment must .be reversed, because the mode pursued is against the established forms of equity pleading.

An attentive consideration of the statute leads us to the conclusion, that where the contract has not been recorded, the remedy is intended to be at law. The petition is directed- to be docketted on the common law appearance docket, and the court is directed to be governed by the same rules, of evidence that are observed in suits at law, and to give judgment according to the justice of the case. These last words were probably meant to exempt the courts from the necessity of adhering to the strict rules of pleading, and the whole language'distinctly stamps upon the proceeding the character of a remedy at law. It does not appear that it was intended to take away the trial by jury; indeed the fair inference-is the reyerse, and that no farther change was meant to be introduced than to substitute for the ordinary declaration a petition in which- the nature .of the lien claimed should be set out.. The execution to be issued is an execution at law in the common form, except that it describes the property to- be sold; in this respect resembling an order of sale of attached effects, or á venditioni exponas. The statutes upon the subject of the liens- of mechanics passed before the act of 1840, under which this case arose, have been considered and enforced by this court, without objection to their constitutional validity. See 2 Howard, 874. In several other states similar laws exist, and in none, so far as we know, have they been held to be unconstitutional. See 12 Wendell, 373; 8 Yerger, 168. The remedy prescribed in this state is not in form identical with that in the other states ; but the variance is not so great as to require us to declare the act to be unconstitutional. There is a very strong and striking resemblance between this statute and one in Tennessee in regard to the lien of a landlord upon the crop grown on the premises, so far as the mode of enforcing the lien is concerned. There it has been held, that the landlord, to enforce his lien, must bring suit and recover judgment for the rent, and then the lien of his judgment and execution take date from the day the rent falls due. Hardeman v. Thumate, Meigs 398; 6 Yerger, 267. So here, when the judgment is obtained and the special execution issued, the lien attaches to the property described in the petition from the date of the agreement or time of performing the labor, and is enforced from that period by the relation of the execution.

The objection seems to be, not that the jurisdiction is given to the circuit court in the exercise of chancery powers, as it is conceded might be done, to foreclose a mortgage, or enforce a lien; but that it is given to that tribunal to enable it as a court of law to exercise a jurisdiction which belongs only to a court of equity. The right to enforce a lien may often be more appropriately exercised by a court of chancery ; but it does not belong exclusively to that tribunal. Every judgment at law constitutes a lien, and in giving effect to it, it sometimes becomes necessary to call in the aid of a court of equity; but more frequently it is rendered effectual by the inherent powers of a court of law. This act merely by relation gives an antecedent effect to a judgment by coupling it with a prior lien. Had we framed the law we might not have selected that mode of remedy, but we see no such repugnance to the constitution in it, as calls upon us to pronounce it void.

The other objections to the proceeding are of a minor character. It is said that the verdict should find not only the indebtedness, but its character; that is, whether it was the kind of debt mentioned in the statute.

The verdict in this case is in general terms, “ we of the jury find for the plaintiffs,” and the only construction to be placed upon this is, that under the issue of non-assumpsit, they had found the allegations of the petition to have been established by the evidence in favor of the plaintiffs. If they were not justified in the finding, and if the court erred in giving the judgment, the defendant should have put something upon the record by which the error might be perceived.

Another objection is, that a part of the items contained in the account on which the verdict is founded, are not of the character contemplated by the statute. This may be true, but they went to the jury without objection, so far as the record shows; and there is nothing reserved in a bill of exceptions or otherwise upon which to reverse.

The last objection to be noticed is as to the form of the execution. It is insisted that upon this judgment a general execution may issue, without regard to the special form prescribed by the statute, and thus a general lien upon all the defendant’s property be created, instead of the particular property mentioned in the petition. The provisions of this statute of 1840, were introduced especially for mechanics, and they may preserve their lien by pursuing the statute; yet as it is - a benefit provided for them, they may abandon it at their pleasure, either before or after judgment. If they elect not to issue the special execution under the statute, it would amount to an abandonment of the special lien, and they would then occupy the same position with other judgment creditors.

The judgment will be afiirmed.