Julien Gas Light Co. v. Hurley

11 Iowa 520 | Iowa | 1861

Wright, J.

The answer denies explicitly that Ross & Hoy had the first contract, and the ex parte affidavits support rather than contradict this view. In the replication to the answer, it is admitted that Higginson and the said plaintiffs had notice of Hurley’s claim, as also that he claimed a mechanic’s lien, at the time of Higginson’s purchase, but that they were advised that it was subordinate to the lien and judgment under which they claim.

Held: That under the pleadings and affidavits (submitted, the court below did not err in dissolving the injunction.

That the court could well conclude that respondent had the right to the prior lien as a mechanic.

That whatever effect the nunc pro tunc order might have had upon an intervening judgment creditor or mortgagee without notice, complainant having notice, cannot in equity ■take advantage of the fact that the lien was not recognized at the time of the entry of the judgment.

That the appeal, either from the judgment or nunc pro tunc order, did not have the effect of releasing the mechanic’s lien. The lien dated from the commencement of the work, and was paramount to all liens, except incumbrances by judgment rendered, or instruments recorded subsequent to that time. The appeal then, with the supersedeas bond, suspended the right of respondent to issue execution and enforce the collection of his judgment, but it did not destroy or impair the binding efficacy of his lien.

Decree affirmed.