Scruggs & Echols v. City of Decatur

46 So. 989 | Ala. | 1908

ANDERSON, J.

section 2040 of the Civil Code of 1896 says: “All property, real and personal, belonging to the several counties or municipal corporations in this state, and used for county or municipal purposes, shall be exempt from levy and sale under any process, judgment, or decree whatsoever.” There is nothing in the mechanic’s lien law (chapter 71, art. 1) making any innovation as to the foregoing section, so as to permit the enforcement of a mechanic’s lien upon property therein exempted.

The bill shows that the building in question was constructed for and under the authority of the city, to be used for public school purposes. Therefore there could be no lien enforced upon same. — Loring v. Small, 50 Iowa, 271, 32 Am. Rep. 137; Pittsburg v. Milwaukee, 110 Wis. 633, 86 N. W. 592, 84 Am. St. Rep. 948, and cases there cited. And it would seem that such a lien, in the absence of an express statutory provision authorizing it, cannot be enforced upon property used for municipal purposes, independent of section 2040. — McNeal Pipe co. v. Bullock, (C.C.) 38 Fed. 565; Mayor of Birmingham v. Rumsey Co. 63 Ala. 352. Said last case was decided prior to the enactment of section 2040 of the Civil Code of 1896.

The bill also avers that the balance upon which a lien is sought is part of a fund set apart by the city to be applied to the construction of a public school building, and, as said fund was used for municipal purposes, it, too, is immune from the levy or enforcement of any execution or lien.- — Ellis v. Pratt City, 111 Ala. 629, 20 South. 649, 33 L. R. A. 264, 56 Am. St. Rep. 76; Equitable Co. v. Town of Edwardsville, 143 Ala. 182, 38 South. 1016, 111 Am. St. Rep. 34; Porter Co. v. Perdue, 105 Ala. 297, 16 South. 713, 53 Am. St. Rep. 124.

The decree of the chancery court, dismissing the bill of complaint for want of equity, is affirmed.

Affirmed.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.