83 Ark. 528 | Ark. | 1907
(after stating the facts.) 1. The justice'of the peace had no jurisdiction to declare a lien on the mine and the houses and machinery that were permanently attached to the freehold. The mine was real estate, and the houses and machinery that were attached to the soil with the intent that they should remain’ and become part of the 'freehold were fixtures, and no lien could be declared on these by a justice of the peace. His judgment in this respect was void for want of jurisdiction. Const. 74, art. 7, section 40; section 4554, Kirby’s Digest; White v. Millbourne, 31 Ark. 486; Cotton v. Penzel, 44 Ark. 484; Ozark v. Adams, 73 Ark. 227, and cases cited.
The justice having no jurisdiction in this respect, the circuit court acquired none on appeal.
2. The justice had jurisdiction over the subject-matter of the debt and to declare a lien for its enforcement, against the proper parties, on personal property, but not on real estate.
3. Appellee’s claim to a lien is based on section 5359, Kirby’s Digest, which is as follows: “Any person or persons working in any mines in the State of Arkansas, or in any quarries, either stone or marble, shall have a lien on the output of any such mines or quarries for the amount due for such work, and in addition thereto his lien shall attach to all the machinery, tools and implements used in such quarrying and mining, such liens to be enforced in the manner now provided or as may hereafter be provided for the enforcement of laborer’s liens.”
Before it could be determined that appellee was entitled to a lien under this section, it would have to be ascertained that he had a valid debt against the parties with whom he contracted, and this could not be done without making them parties to the suit. It is shown by the agreed statement that Williams and McElhein were the lessees of the mine in which appellant worked, and that appellant’s contract for service was with them. They were nonresidents and not made parties. It is clear that the lessees are the primary debtors, and the suit should be against them primarily to establish the liability, and not against the coal company. They may be joined in the suit, i. e., the lessees and the coal company’ — the lessees so that the debt may be established against'them, and the coal company so that the lien for the debt may be adjudged against its property, if under the law a lien in such cases can be so adjudged. With a change of names, this is the language of this court in St. Louis, I. M. & S. R. Co. v. Love, 74 Ark. 528. It does not follow that a personal judgment must be rendered against the lessees before a lien can be declared against the coal company, if the statute authorizes a lien. Being nonresidents, the lessees may be brought in by constructive service, when the amount of the debt can be ascertained and adjudicated for the purpose of enforcing the lien, if one exists against the coal company. St. Louis, I. M. & S. Ry. Co. v. Love, supra. See Russell v. Grant, 122 Mo. 161; Wibbing v. Powers, 25 Mo. 599.
As the proper parties are not before the court, we decline to settle in advance the question as to whether appellee under the statute and the agreed statement had a lien upon the property of appellant. The question has been ably presented in brief of learned counsel for appellant. We have not been favored with any brief by opposing counsel. But it will be time enough to consider and decide a question of such magnitude and importance when all proper parties are before the court.
Reversed and remanded for new trial.
