60 Tex. 145 | Tex. | 1883
In the disposition of this case it is not necessary to consider the various errors assigned. The main proposition is that the judgment does not conform to nor is it sustained by the verdict.
The rule seems to be well settled that the judgment must be supported by the verdict and the admissions contained in the pleading
Here the court, by the charge, submitted to the jury the issue as to the debt, and also that as to the existence of the lien; the jury by the verdict pass upon and find as to the debt, but there is no finding as to the lien. This is equivalent to finding against the existence of the lien (Roberts v. Johnson, 48 Tex., 133), unless its existence is admitted by the pleading pf the plaintiff in error. Among other defenses, however, the general denial was pleaded; and rio admission of the existence of the lien, either directly or indirectly, is found in the answer. But defendant in error claims that the oral admissions made by the plaintiff in error after the charge was read and before the jury retired to consider of their verdict, and which admissions are recited in the judgment, furnish a sufficient and legal basis for that part of the judgment in which a foreclosure of the lien is decreed. At most such admissions are but evidence of the facts to which they relate, and which alone might support a finding of the jury upon the issue; but can no more be made the basis of any part of the judgment, than can any other evidence introduced upon the trial.
It was essential, to support the decree of the foreclosure of the lien, either that its existence should be admitted by the pleadings or else affirmed by the verdict of the jury. May v. Taylor, 22 Tex., 348; Bledsoe v. Wills, id., 650; McConkey v. Henderson, 24 Tex., 212. In our opinion that portion of the judgment decreeing a foreclosure of the lien has no legal basis for its support, and is therefore erroneous.
The proposition that the amount in controversy, being less than $500, the district court could not render a personal judgment, but that it could but ascertain the existence of, and decree a foreclosure of the lien, is not sound. By the terms of the constitution the assertion of a lien upon land gives the district court jurisdiction over the entire suit, with power to finally dispose of the same. Art. V, sec. 8, Const. 1876.
Plaintiff in error claims that as the act of 1871, under which the asserted lien accrued and was fixed, had been expressly repealed by the act of 1876, regulating mechanics’ and other liens, prior to the trial of this case, that the asserted lien ceased and could not be enforced. This question is not altogether free from doubt. Several
Other courts, upon what seems to us better reasoning, hold that, where the lien has been fixed and secured, it becomes a vested right, and that it is not within the power of the legislature' to destroy the right by a repeal of the statute under which it accrued. To this effect are the following cases: Wabash, etc., Canal Co. v. Beers, 2 Black, 448; Weaver v. Sells, 10 Kan., 609; Streubel v. Milwaukee, etc., R. R. Co., 12 Wis., 74; Christman v. Charleville, 36 Mo., 610; Hallahan v. Herbert, 11 Abb. Pr. (N. S.), 326; In re Hope Mining Co., 1 Sawyer (U. S. C. C.), 710. While Mr. Wade, in his work on Retroactive Law, § 173, states the. rule as follows: “The rights of contractors, materialmen, subcontractors and laborers, under the statutes giving mechanics’ liens and rendering them enforceable against the property upon which the work is done or material furnished, are similar in kind, and governed by the same principles. The lien secured by giving notice, and otherwise complying with the law, or even the right to the lien before, notice given, is part of the obligation of the contract, and at the same time a right which the law secures to the mechanic or materialman, under the same sanctions as may be invoked to protect the title to corporeal property.”
Especially in view of the fact that the lien is declared by our constitution, it would seem that the statute providing for its enforcement would enter into and form part of the contract. Certainly, as a general rule, such contracts are made with reference to the then existing law, and the labor is usually done or the material furnished upon the faith, or rather the security, given by the same.
In this case the lien had been fixed under the act of 1871, and suit was pending for its enforcement long before it was repealed by the act of 1876. And our conclusion is that the lien was not destroyed by that repeal.
Besides, the repealing act contains substantially the same provisions with respect to fixing, securing and enforcing the lien as was contained in the repealed law. Under such state of case it would seem to follow that, even though it had been within the power of the legislature to destroy the lien, yet it should be held that such
Other errors assigned are such as will not likely occur upon another trial, and need not, therefore, be considered.
For the error noted herein the judgment ought to be reversed and the cause remanded.
Reversed and remanded.
[Opinion adopted October 9, 1883.]