9 W. Va. 231 | W. Va. | 1876
The plaintiffs in error, in this case, as a building committee of the Methodist Protestant church, of Bridgeport, Harrison county, entered into a contract, some time in the summer of the year 1873, with David D. Wilkinson, for the erection, by him, of a house of worship, on a lot belonging to said trustees of said church, in said town of Bridgeport. The defendant in error, having a judgment against said David D. Wilkinson, rendered by the circuit court of said county, on the ninth day of March, 1869, for the sum of $144, with interest from the second day of May, 1864, and $8.15 costs, on on the thirty-first day of December, 1873, caused a writ of fieri facias to be issued^out of the clerk's office, on said judgment, for the amount thereof, and on that day, placed the same in the hands of the sheriff of said couny, to be levied; and on the same day he filed a suggestion in the clerk’s office, of said court, suggesting that the plaintiffs in error, among others, were the debtors of said Wilkinson, and that his said writ of fieri facias constituted a lien on such indebtedness, for the payment thereof. A summons was issued by the clerk, upon said suggestion, and was served on the plaintiffs in error, on the fourth of January, 1874. The summons is in the usual form, and was made returnable to the first day of the next term of the said circuit court. It appears, from the record, that afterwards, on the twenty-third day of July, 1874, the plaintiffs in error, in obedience to said summons, appeared before the said court, as garnishees
This cause was decided by the court, and it appears by the bill of exceptions, substantially, that the plaintiffs iu error appeared before said circuit court, pursuant to the summons served on them, the fourth of January, 1874, and found the following facts: That some time in the year 1873, the said garnishees, acting as a building committee for the Methodist Protestant church, of Bridgeport, in said county, entered into a contract, with the said David D. Wilkinson, for the erection, by him, of a house of worship, on a lot belonging to the trustees of said church, situated in the said village of Bridgeport, at the contract price of $ — ; that during the erection of said building, J. N. Wilkinson & Co., merchants in said village, furnished said David D. Wilkinson, materials for the said house, to the amount of $72.99; that J. W. Coffman, a merchant oí same village, furnished said David D. Wilkinson materials for the erection of said house, to the amount of$44.G4; that the records of said accounts which were recorded as mechanics’ liens were offered in evidence; that of J. N. Wilkinson & Co., amounting to $73.21, commencing September 2, 1873, and ending February 13, 1874; and that of J. W. Coffman, amounting to abalance of $44.64, commencing December 15, 1873, and ending February 17, 1874. These accounts seem to have been sworn to, and admitted to record, in the clerk’s office of the county court of Harrison county, on the twelfth day of March 1874. But the accounts were not subscribed by any person. It further appears, by the said bill of exceptions, that, on the twelfth of March, 1874, the said J. N. Wilkinson & Co., and the said J. W. Coffman, gave notice
It now remains to determine whether the circuit court erred in its judgment. In the case of Mayes v. Ruffners, 8 W. Va. 384, it was decided by this Court:
“1. A mechanic’s lien is of statutory creation, and can be maintained only by a substantial observance of, and compliance with, the requirements of the statute.
2. The mechanic’s lien, created by section two, chap-, ter seventy-five, of the Code, is discharged, unless the person desiring to avail himself thereof, within thirty days from the time he ceases to labor on, or furnish material for, such building and appurtenances, file with the recorder of the county, in which the house or building is situated, a just and true account of the amount due him, after all credits, together with a description of the property intended to be bound by the lien, sufficiently accurate for identification, with the name of the owner or owners of the property, if known, which account shall be subscribed and sworn to by the person claiming the lien or some one in his behalf.” The third section of chapter one hundred and thirty-nine, acts of 1872-3 contains, substantially, the same provisions as to subscribing and swearing to the account., as the third section of chapter seventy-five of the Code of 1868, upon which this Court has expressly decided — neither ofthe accounts claimed to be mechanic liens were subscribed by the persons claiming the liens, or any person in their behalf. Although the said accounts for material furnished, seem to have been sworn to, still they were not subscribed as required by the law, to become liens on the property under the second and third sections of chapter one hundred and thirty-nine of the said acts of 1872-3. It is claimed, however, that the persons who furnished the materials, mentioned in said accounts, were entitled to be paid the amount thereof under the provisions of the fifth section of said chapter. The said fifth section gives no lien on the property, but only requires the owner to pay to the
■ For these reasons I do no.t- see error in the judgment qf said circuit court, and the judgment must be affirmed, with damages, according to law, and with costs to the appellee.
Judgment Affikmed.