38 W. Va. 691 | W. Va. | 1894
At September rules, 1892, the appellant in this case, Hall’s Safe & Lock Company, filed its bill in chancery in the clerk’s office of the Circuit Court of Wayne county against the Cóuuty Court of said county and J. D. S,cites and O. L. Wiley, partners doing business under the firm name and style of Scites & Wiley, claiming the right to enforce a mechanic’s lien against the court-house and grounds of said county for material furnished by them to said Scites & Wiley, contractors, for the construction of said court-house, and which material so furnished was used in said building, and never paid for, being of the value of one thousand seven hundred and fifty dollars.
The County Court demurred to said hill, for the reason that a, mechanic’s lion could not attach to a public building, and therefore the bill was without equity. On the 80th day of May, 1893, the Circuit Court sustained the do-
“It was error to dismiss' said hill upon said demurrer, because, under the law, the plaintiff was in equity entitled to re-cover from the defendants Scites & Wiley the amount, due the plaintiff, and, Inwing complied with the requirements of the statute giving him a lien for materials furnished, and the County Court of Wayne county being indebted to said Scites & Wiley, its contractors, the court should have entered a decree adjudicating the claim, and the order requiring the County Court of Wayne county to pay the same by the issuing of a proper county order, as prayed for in said bill.”
The only question raised by this assignment is whether tlfe public buildings of a county may be subjected to a mechanic’s lion, as there is no other matter of equity alleged in the hill. There has been no decision by this Court in relation to. the question presented, but in many of the states the matter has been judicially determined, and invariably against the right to such lien; and in Phillips on Mechanic’s Liens (section 179) the rule as settled by these various decisions is as follows, to wit:
“Property which is exempt from seizure and sale under an execution upon grounds of public necessity must for the same reason be equally exempt from the operatiou of the mechanic’s lien law, unless it appears by the law itself that property of this description was meant'to be included; and to -warrant this inference something more must appear than the ordinary provisions that the claim is to be a lien against a particular class of property enforceable as judgments rendered in other civil actions.” Board v. O'Conner, 86 Ind. 536; Williams v. Controllers, 18 Pa. St. 275; Poilion v. Mayor, etc., 47 N. Y. 666; Secrist v. Delaware Co., 100 Ind. 59; Whiting v. Story Co., 54 Ia. 81 (6 N. W. Rep. 137); Panola Co., v. Gillen, 59 Miss. 198; Bouton v. McDonough Co., 84 Ill. 384; 15 Am. & Eng. Enc. Law, 29.
There is nothing in the statutory law of this state, that indicates in any way, that it was the intention of the legislature, that public building should be subject to mechanic’s
1’ublic policy and necessity both sustain this law. Lf such things were permitted, counties would be in continual litigation about their properties, either from just 'or unjust demands, and the public business would be greatly interfered with and hindered, to the great detriment of'the innocent tax-payers;
The assertion that, while the plaintiffs would not have the right to sell the property, yet they would have the right to have their alleged mechanic’s lien enforced to the extent of requiring the County Court to issue an order for the amount claimed by them out of funds due from the county to Scites & Wiley, is untenable. The hill contains no allegation that the county is in any manner or to any extent indebted to Scites & Wiley, nor can it be regarded either as a garnishee process or as a petition for a mandamus to compel the County Court to issue an order for the sum demanded.
A mechanic’s lien can not attach to property, the sale of which the law forbids, and, this being the. only ground of erpiity set up in the hill, the Circuit Court committed no error in sustaining the demurrer, and dismissing the same. Therefore the decree complained of is affirmed, with damages and costs, as the law directs.
