50 Iowa 170 | Iowa | 1878
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
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.
Modified and affirmed.