Gray v. Dunham

Day, J.

i. mkctíanio’s iien: merger. I. Tlie plaintiffs, as appears from the allegation of the petition, furnished material for the building of a house upon a lot in block 54 of the town of Stuarf;_ ^ mechanic’s lien was filed in which, by mistake, the lot was described as situated in block 52. On the 1st day of October, 1877, the plaintiffs obtained judgment upon their claim for two hundred and fifty-seven dollars and fifty-one cents debt, and twenty-six dollars attorney’s fees, and a foreclosure of their mechanic’s lien upon a lot described as situated in block 52. Afterward, on the 22d day of December, 1877, the plaintiffs filed in the office of the clerk of the District Court a just and true account of their demand, verified by affidavit, claiming a mechanic’s lien upon lot- 4, in block 54, 'the lot upon which the materials furnished by plaintiffs were used. This action is brought to set aside the mechanic’s lien established and foreclosed upon lot 4, in block 52, and to establish and foreclose the lien upon lot 4, in block 54.

1. The appellant claims that the account which plaintiffs held against the defendants was merged in the judgment of October 1,1877, and that it cannot be made the basis of a claim for a mechanic’s lien. It is doubtless true that the general rule is that, by a judgment at law or a decree in chancery, the contract or. instrument upon which the proceeding is based becomes entirely merged in the judgment. Its force and effect are then expended, and all remaining legal liability is transferred to the judgment or decree. Wyman v. Cochrane, 35 Ill., 152. But the facts in this case are peculiar, and such as, we think, should take it out of the operation of the general rule.

A mistake was made in the description of the lot upon which the lien was claimed. It must be conceded that if this mistake had been discovered before judgment the judgment in its present form would not have been taken. There is no absolute rule of law or principle of equity which demands that, under these circumstances, the account should be treated as so finally and entirely merged in tlie judgment that it cannot furnish the basis of a claim for a mechanic’s lien on the property for which the material was furnished. Such a holding would prefer shadow to substance, and would permit a mere technicality to triumph over broad and beneficent equitable principles. We are of opinion that, under the circumstances, the statement for a lien was properly filed, notwithstanding the judgment.

2. It is further claimed by appellants that the mistake in filing the claim for a lien is irremediable; that plaintiffs were bound at their peril properly to describe the property upon which the lien was claimed. In support of this view appellants cite Lindly v. Cross, 31 Ind., 106. This authority is not applicable. In that case the property on which the lien was claimed was described as lots “6 and 7 ” instead of “ 3 and 4. ” The plaintiffs, without attempting to file a lien upon the property for which the material was furnished, asked the court to correct the lien already filed, and establish it against lots 3 and 4. The court held that the lien is created by statute, and the court had no power to reform it. In this case, within the time allowed by law, a statement for a lien upon the property, correctly described, was filed. We know of no sufficient reason why a mistake in the description of the property upon which a lien is claimed should prevent a party from claiming a lien upon the property intended to be described.

II. It is claimed that the decree erroneously establishes a lien upon the property in question for the twenty-six dollars attorney’s fee. The decree does not in direct terms establish a lien for this part of the judgment, but it does establish a lien for the judgment generally, without excluding the attorney’s fee. The record does not disclose enough to enable us to determine how this attorney’s fee became originally incorporated in the judgment. It cannot, we think, be made a lien upon the property in question. The decree will be so modified .as to refuse a lien for this portion of the judgment. As this relief might have been obtained in the court below, if the attention of the 'court had been directed to it by motion, the modification will be made without cost to the appellees.

Modified and affirmed.