Dewey v. Fifield, 2 Wis. 73

Dewey v. Fifield

2 Wis. 73 | Wis. | 1853

By the Court,

WirtTON, C. J.

It appears that this action was brought in the Rock County Court, by Fi-field against Dewey, to enforce a lien upon a dwelling house, pursuant to chapter 120 of the Revised Statutes,

A petition was filed, and the action was commenced within the time limited by the statute. It appears farther, that the defendant was defaulted, and that a writ of inquiry was issued to assess the plaintiff’s damages. The jury consisted of six jurors, who assessed the damages at four dollars and five cents. The jury further found that the plaintiff had no lien upon the building of the defendant. Upon this assessment and finding of the jury, the court rendered a judgment against the defendant for the sum of four dollars and five cents damages, together with costs, and ordered that the judgment be satisfied by a sale of *79the premises described in the plaintiff’s petition, or of such part thereof as shoüld be sufficient for that purpose.

The plaintiff in error seeks to reverse this judgment for the following reasons :

1st. Because the judgment for costs is erroneous, there being no testimony to show that the plaintiff had a lien upon the building, and, of course, nothing to show but that the action could have been brought before a justice of the peace.

2d. Because the damages were assessed by a jury of six, there being no authority for this mode of assessment in the County Court; and

3d. Because the writ of inquiry should have been made returnable on the first day of the next term of the court, and the jury to assess the damages, should have consisted of twelve jurors.

The view which we have taken of the case, renders it unnecessary to consider any of these objections, as we think that the declaration is entirely insufficient to warrant the judgment which was rendered; The statute under which the suit was brought, creates a lien upon any building erected, in favor of any person who shall perform labor upon it, or who shall furnish materials used in its construction, and provides a mode in which the lien can be enforced. The statute also creates a lien upon the interest of the owner of the building in the land upon which it is situated, not exceeding one acre, if within the limits of any city, town or village plat, and not exceeding forty acres, if without those limits. In order to enforce the lien, a “ petition or claim for the same ” must be filed, and an action instituted within one year from the time the work was done, or the materials were provi*80ded. The eighth section of chapter one hundred and twenty, above referred to, is as follows:

« ap[ cases of lien created by this act, the person having a claim filed in accordance with its provisions, may proceed to recover it by personal action against the debtor, his executors or administrators, or, when the plaintiff is a sub-contractor, by a scire facias against the owner of the building.”

In this case, the plaintiff brought an action against the debtor, who was the owner of the dwelling house.

By the words “personal action” as used in the section of the statute above quoted, we do not suppose the ordinary action in 'personam for the recovery of a sum of money or damages, against the debtor, is intended, because such an action is not at all calculated to give the plaintiff the relief which the statute provides. The judgment in such an action would bind the real estate of the debtor only from the time it was rendered, whereas he seeks to make the building, and the interest of the owner of it in the land upon which it is situated, liable from the time the labor was performed, or the materials were provided. But we think that while the action is personal, it must be adapted to the object to be accomplished ; the declaration should therefore contain the necessary aver-ments to show not only that a sum of money is due the plaintiff, but that the debt was created by the performance of labor upon, or materials furnished for the building ; it should state, also, that the claim or petition was filed within the time limited by the statute, and it should contain a description of the building, and of the premises upon which it is situated. All these facts are material, and unless they are all *81proved on the trial, tire plaintiff cannot obtain a xnent under the statute. The declaration is in eases a statement of the facts upon which the plaintiff relies, and must allege all the circumstances necessary for the support of the action. (1 Chitty’s Pl. 185.) Tested by the rule above laid down, the declaration in this case is clearly insufficient, and does not warrant the judgment which was rendered by the court. The first count may be sufficient, as it alleges the indebtedness of the defendant for materials used in the construction of the dwelling house, describes the situation of the house, and avers the filing of the petition. But the second count states nothing but the indebtedness of the defendant for shingles, boards, scantling, joist, iilanks, timber and other lumber, sold and delivered ; omitting any averment as to the other facts necessary to be proved. We suppose it to be a universal rule, that, when there are several counts in a declaration, some of which are good, and one of them is bad, and there is a general verdict upon all the counts, in favor of the plaintiff, no judgment can be properly rendered, unless it can be shown that the testimony related to the good counts only. 3 Wils. 185; 3 M. & S. 110; Backus vs. Richardson, 5 John. R. 476; Bayard vs. Malcom, 2 John. R. 573; Benson vs. Swift, 2 Mass. R. 53. And the like consequence follows when, as in this case, there is a default for want of a plea, and an assessment of damages upon all the counts. Lyle vs. Clason, 1 Caine’s R. 581.

We are aware that some of the cases held, that where all the counts relate to the same cause of action, this doctrine does not apply, but that the court will allow the verdict to be altered so as to' refer to the good counts. Baker vs. Sanderson, 3 Pick. R. 348; Corn*82wall vs. Gould, 9 id. 446; Smith vs. Cleveland et al., 6 Met. R. 332. But the counts in the declaration in this case are not of this character. We think that the judgment in this case is erroneous for another reason. It makes the premises on which the dwelling house is situated liable for the debt, and directs “ that such damages, costs and charges be levied out of the premises described in the petition filed in this cause, or so much and such part thereof as may be sold separately and without damage to the whole, as shall be sufficient to satisfy such damages, costs and expenses of sale. The statute under which this proceeding was had, does not authorize such a judgment.

The first section, above cited, provides that the building erected, and “ the right, title and interest of the person or persons owning such house or other building, in and to the land upon which the same is situated,” shall be subject to the debts contracted for work upon the building, or for materials used in its construction.

The judgment should not direct a sale of the land upon which the building is situated, or any part of it, but only the interest which the defendant has in it, as it was not the intention of the legislature to authorize the sale of property belonging to other persons, to pay the debt contracted by the owner of the building in its construction.

For these reasons the judgment of the County Court is reversed.