2 Iowa 488 | Iowa | 1856
The plaintiff moves this court to dismiss the appeal, and affirm the judgment in this cause, for the reason that the transcript contains no bill of exceptions, to show the error complained of in the judgment or proceedings of the District Court. This motion cannot be granted, as a matter of course. The fact that there is no bill of exceptions here, to show the error complained of, does not necessarily preclude the possibility that there may be error in the record,
The counsel for the defendants, assign for error in the judgment of the District Court, that such judgment should not have been rendered against the house described in the petition; that the same was not authorized by law, under the state of facts developed by the pleadings; nor was the same authorized against a house, where the contract to build was not made with the owner of the lot on which it was situated. The important question for our consideration is, whether the judgment was properly entered against the house situated on lot No. 480. The action for a mechanic’s lien, is not a proceeding against the property. It must be commenced as in ordinary actions upon account. It must be against some person by- name, as defendant, and can only be by virtue of a contract with the owner of the land. The judgment, likewise, must be rendered against some person as defendant, and cannot be against the land alone. If there has been no contract with the owner of the land, no lien can .attach by virtue of the labor done, or materials furnished, in the erection of a house upon it. The amount of interest held by such owner, does not seem to be material The lien, however, will attach only to such interest. It extends to the whole of his estate or interest, and no farther. Code, §§ 981, 982.
The petition in this case, does not allege that Williamson, who made the contract, had any interest in the lot. It appears, on the contrary, that it was known to plaintiff that the
It appears to us that the plaintiff failed entirely to make out his case, as alleged in his petition. Under the state of facts appearing in the record, we are of opinion, that there could have been no judgment for a lien properly rendered against Williamson; because, although he made the contract, he was not the owner of the lot, and had no interest in it. There could have been no j udgment properly rendered against the Whites; because, although they were the. owners of the lot, they had, in no sense, made the contract with plaintiff, for the labor and material, and had not in any manner assented to it. The District Court, however, seems _ to have been of opinion, that the plaintiff was entitled to a judgment for the value of his labor and materials; and as it could not be rendered against the defendants, nor any of them, that it ought to be rendered against the building he had erected on the lot. Such a judgment, to say the least of it, is rather unusual. In a proceeding for a mechanic’s lien, where there are several defendants, and especially where, as in this case, their interests are diverse, the plaintiff, on proper proof, may be entitled to a judgment against one or more of them, although he has sued as upon a joint contract. In such case, however, the other defendants are entitled to a judgment in their favor, and as to them the suit should be dismissed. In the present case, the court does not ascertain against whom, if against any of the defendants, the plaintiff is entitled to recover. It does not determine as to whom the suit should be dismissed. But, without adjudicating either of these questions, it renders a judg