Gillespie v. Lovell

7 Kan. 419 | Kan. | 1871

The opinion of the court was delivered by

Valentine, J.:

i. Attachment; SireTpraottee. This was an action on an account and to enforce a mechanic’s lien for the amount of such account. An attachment was also issued in the case on an affidavit of the plaintiffs. The defendants moved the judge of the court below, at chambers, to dissolve the attachment, and the motion was sustained. There are two questions in this case: First, Can a motion to dissolve an attachment be made before the district judge, at chambers, without first filing the same with the clerk of the court ? Second, Can an order of attachment he issued in an action on an account, and to foreclose a mechanic’s lien ? Both of these questions must he answered in the affirmative. When an order of the district judge, at chambers, sustaining or dissolving an attachment is made, it, together with the motion, is then filed with the clerk of the court, and becomes a part of the record.

2. in what case attachment allowed. The second is the principal question in the case. Under § 190 of the civil code, (Laws of 1870, p. 171,) the plaintiff may have an attachment in every “ civil action ior the recovery of money. The enforcement of a mechanic’s lien is, under said code, a “ civil action: ” § 634, Gen. Stat., p. 756, and is “ for the recovery of money.” The debt upon which the action is brought is the real subject of the action, and the mechanic’s lien is simply subservient and auxiliary thereto; and the judgment rendered in such an action is not merely a judgment of foreclosure, but it is a personal judgment against the debtor for the amount of the debt, with interest, and the property upon which the lien exists is ordered to be sold to satisfy said judgnient: civil code, §399, Gen. Stat., p. 705; Laws of 1870, p. 175, §13. If this was purely a suit in equity to foreclose a mechanic’s lien, a suit in which no personal judgment could be rendered, probably an attachment would not lie; but as it is not such a suit, as it is an action in which a personal judgment is allowed by law, a judgment that will not only reach the property upon which the mechanic’s lien exists, but will also reach all the property of the judgment-debtor not exempt by law from execution, a judgment upon which an ordinary execution may be issued, there seems to be no good reason why an attachment may not be issued in this case as in other cases. The language of the statute is certainly broad enough. Will it be supposed that such a judgment, as the one rendered in mechanic’s lien cases, would not, when rendered, be a lien, the same as other personal judgments, upon all the real estate of the judgment-debtor subject to execution, that which is free from the mechanic’s lien as well as that which is subject to it ? Will it be supposed that the plaintiff would not have the same right to an attachment and garnishment upon such a judgment, after the property subject to the mechanic’s lien had been exhausted, as he would have upon any other judgment? The language of the code prescribing in what actions trials by jury may be had, is precisely the same, so far as it affects this case, as the language prescribing in what actions attachments may be issued: Comp. Laws, 168, § 274; Gen. Stat., 680, §266; id., 664, §190; Laws of 1870, p. 171, § 4. Trials by jury and attachments are both allowed in “ actions for the recovery of money.” It is conceded that under said code parties are not entitled as a matter of right to a trial by jury in ordinary equity proceedings. It is therefore claimed by counsel for defendants, that the plaintiffs are not entitled to an attachment in this case. The logic of counsel fails, because'this is not an ordinary equity proceeding.. It has already been decided by this court, that in an action to. foreclose a mortgage, where the plaintiff claims a personal judgment for money, the defendant is entitled to a jury trial. The equitable action of foreclosure is, in such a case, converted into a legal action. This court has also decided that in an action to foreclose a mechanic’s lien, if the plaintiff fail in establishing the lien, he is nevertheless entitled to a personal judgment for the amount due to him: Haight v. Schuck, 6 Kas., 192. This decision would be erroneous if the foreclosure of a mechanic’s lien were purely an equitable action, or if the enforcement of the lien were the main object of tbe action, for in such a case, if the lien should fail, the action would go with it.

It seems to be conceded by the defendants that the affidavit upon which the attachment was issued is sufficient ; hence the motion to dissolve the attachment was not based upon.any supposed deficiency in the affidavit, but it was based upon a fact (that the action was “ to foreclose a mechanic’s lien,”) to be shown by the other papers in the case: GeD. Stat, 673, §229. The defendants chose to rest their motion to dissolve the attachment upon the sole ground that an attachment does not lie in an action to foreclose a mechanic’s lien. ^hey did not attempt to show that the lien itself was a sufficient security for the plaintiffs’ claim, and they objected to the plaintiffs showing that it was not a sufficient security. They objected to the plaintiffs showing that in fact they had no lien at all, and therefore that they had no security whatever, and the judge below sustained the objection. It will be conceded that if it had been shown that the lien itself was a sufficient security for the plaintiffs’ claim, it would have been the duty of the court below, or judge, to dissolve the attachment. In fact, it is even probable that when the question is properly raised it devolves upon the plaintiff to show that the lien is not a sufficient, security, or else it will be the duty of the court or judge to dissolve the attachment; It can hardly be supposed that the law intends to give to the plaintiff a double security. ■ The order of the judge below must be reversed.

All the Justices concurring.