59 Mo. 434 | Mo. | 1875
delivered the opinion of the court.
In pursuance of the act of 1871, (Wagn. Stat., 811a, ed. of 1872) the plaintiffs instituted a proceeding before a justice of the peace iu St. Louis County, for the purpose of enforcing a mechanics’ lien. The justice gave a judgment accordingly, and a transcript thereof was duly filed with the clerk of the Circuit Court. Hpon the transcript an execution was issued, which was afterwards set aside and quashed, and the plaintiffs sued out their writ of error.
It is contended by the plaintiffs that the decision of the Circuit Court was wrong, as the justice acquired jurisdiction over the case, and that defendant’s only remedy was by appeal. If their premises are granted their conclusion necessarily follows. Though the judgment of the justice was erroneous or reversible, still if he had jurisdiction over the subject matter, an appeal to a competent court was the proper mode of correcting the mistake. But if the record shows that the judgment was void or that the justice proceeded without any authority, then his 'proceedings may well be treated as a nullity, and the court had the undoubted right to quash any execution issued upon them.
The account filed before the justice, on which the lien was
The first section of the statute relating to mechanic’s liens, gives to every mechanic or other person who shall do or perform any work or labor upon, or furnish any material for any building, erection or improvements upon land, or for repairing the same, by virtue of any contract, alien upon such building, erection or improvements, and upon the land belonging to such owner or proprietor, on which the same are situated, to the extent of one acre ; or if such building erection or improvement be upon any lot in any town, city or village, then the lien shall be upon the building and the lot.
The 3rd section declares, that the lien for the things aforesaid, or work, shall attach to the buildings, erections or improvements, for which they were furnished or the work was done, in preference to any prior lien or incumbrance or mortgages upon the land upon which the buildings, erections or improvements were erected or put, and that any person enforcing such lien may have such building, erection or improvement sold under execution, and the purchaser thereof may remove the same within a reasonable time. (Wagn. Stat., 907-8.)
It will be observed that the necessary pre-requisite to the enforcement of a mechanic’s lien, is, that the mechanic or other person shall do or perform work or labor upon, or furnish materials for a building, erection or improvements upon land, and the law then attaches the lien to the building, erection or improvements, in the first place, and also to a certain quantity of laud on which the same may be constructed.
This is upon the idea that the work or labor or materials have been a benefit to the realty or enhanced its value. In certain cases even the building or improvements may be sold separately and taken away. In every instance, however, the buildings or improvements are regarded as the primary objects which confer the lien, and the land is added thereto, where it belongs to the owner or proprietor. The law pre
The judgment is involved in the same mistaken notion. It gives a lien against the land but nothing else. For this we know of no authority. A lien may be. taken against buildings or improvements without the land, but it cannot be taken against the land alone, unless these necessary attachments are upon it. It is true this error in the judgment might not be available if the court bad rightly obtained jurisdiction, but the plaintiff’s own pleading which lies at the foundation of the suit, shows that he bad no cause of action, and that the judgment is an entire nullity. No legal, process, therefore, could be issued upon it.
Tlie judgment is affirmed ;