118 Tenn. 548 | Tenn. | 1907
delivered the opinion of the Court.
This is an action brought by A. H. Yates & Co., the defendants in error, to enforce a furnisher’s ■ and mechanic’s lien claimed by them as subcontractors under chapter 67, p. 79, Acts of 1881, as amended by chapter 103, p. 207, Acts'of 1889 (Shannon’s Code, sec. 3540), against the property of Mrs. Lena A. Warner, the plaintiff in error, before F. M. Guthrie, Esq., a justice of the peace of Shelby county.
A. H. Yates & Co., as subcontractors under Mansfield Bros., furnished the material and put the plumbing in a house built by their principals for Mrs. Warner in the city of Memphis. Mansfield Bros., although they received payment in full, failed to pay A. H. Yates & Co. a balance of $115.35 due them. A. H. Yates & Co., by proper notice served October 31, 1904, upon Mrs.
“Sec. 1987. This lien shall be enforced by attachment either in law or in equity, or by judgment and execution at law, to be levied upon the property on which the lien is.”
“Sec. 8543. The mechanic’s lien shall be enforced by attachment at law or in equity or by judgment at law and levy of execution upon the property subject to the lien.”
“Sec. 3547. The lien of mechanics, foundrymen and machinists may be enforced by suit before a justice of the peace for sums within a justice’s jurisdiction, and when attachment has been levied on land and judgment rendered and execution also levied thereon the papers shall be returned to the circuit court, there to be proceeded upon as in other cases of levy of justice’s execution on land.” Shannon’s Code, secs. 3543, 5306, 5310.
These provisions apply to principal contractors and subcontractors alike, with this exception: Subcontractors, not being creditors of the owners of the property upon which the improvements are made, cannot enforce liens in their favor by judgment and execution. Taylor v. Lumber Co., 107 Tenn., 41, 63 S. W., 1130.
The attachment authorized by these sections is not original or ancillary. It is an extraordinary process, and cannot be issued, except upon the order of a judge or chancellor in suits begun in the circuit and chancery
It cannot be used as the leading process to bring defendants before the court, but is auxiliary in its nature and collateral to the original or leading process by which a suit is commenced. Brown v. Brown, 2 Sneed, 432; Murry v. Conner, 4 Baxt., 220; Lane v. Wood, 1 Tenn. Cas., 648.
Where an action is begun by original attachment, it may be incorporated with it, but cannot constitute the leading process. Hillman v. Anthony, 4 Baxt., 444.
The attachment that was sued out in this case does not purport to be an original attachment. The affidavit does not state any ground for the issuance of such an attachment. On the contrary, it appears by express statement in the affidavit and. recital in the attachment that it is issued for the purpose of enforcing a fur-nisher’s and mechanic’s lien, _and it clearly appears that it was intended to be sued out under the statutes authorizing attachment for that-purpose. No summons having been issued of which it could be in aid, it was unauthorized and a nullity. The suit brought February 16, 1905, against Mrs. Warner, was after the lien had expired, and also insufficient in form.
There is no form of procedure'for. enforcing mechanics’ and furnishers’ liens before justices of the peace provided. Jurisdiction, which carries with it the power to issue the attachment, only is given by the statute. The proceedings, therefore, before the justice of the peace,